Software Licensing Attorney – BSA Audit FAQ. Call us to discuss your case with a free initial consultation or email me at the address at the right side of this page.
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Our intellectual property & software compliance law firm is a leader in the United States in handling BSA software audits. Yes, we also handle Autodesk, Adobe, Siemens, Microsoft, and others, but the Business Software Alliance is one of our favorite software trade associations to work with. These cases can involve very hi settlement figures and even “bet the farm” types of cases. This blog will provide you with an overview of some of the top questions I have heard over the years representing hundreds of clients in copyright infringement matters such as software audits which are brought under the United States Federal Copyright Laws.
Who is the BSA?
The BSA stands for the “Business Software Alliance.” They are NOT a software company. They are NOT law enforcement. They are a trade association that seeks, among other things, to enforce their rights of their members by using regional law firms to conduct software licensing “audits” on people or companies suspected to be using unlicensed software, pirated discs, or over0installing software or using crack codes (i.e. downloading pirated software over the internet or through torrents). They are located in Washington D.C.
Who are some of the regional law firms that represent the BSA Software Alliance?
Some of the law firms we have dealt with over the years include:
1. FDK Law
2. Venable, LLP
Which law firm is the toughest to deal with?
One of the toughest law firms we ever dealt with was the Venable LLP firm. Not due to feeling inadequate or anything like that, but we were pushing them hard on licensing terms and finding it really difficult to get the types of results we wanted. We fought hard in every case with them. Eventually, when we got new cases with the Venable firm, they passed them on to new counsel. We considered this a big win for the tenacity of our firm never giving up on our cases with them.
Is the audit “voluntary” or “mandatory?”
Well, this depends on who you ask and from my perspective, the answer to this question has changed over the years. Initially, I was always told: “these BSA audits are voluntary.” Then, recently, I have been told: “these are contractual audits, they are NOT voluntary.” Typically, however, I have never seen them provide any evidence that anyone signed anything making it MANDATORY in nature.
What happens if we do not respond?
If you do not respond to a letter from one of the law firms above, or another one not listed, and if the firm has evidence of infringement in their possession (ex. a former IT person who worked at your company says “these guys were running 50 copies of Microsoft office and windows without any licenses), it is possible that the BSA would inform Microsoft of same, and it is theoretically possible that Microsoft could file a federal copyright lawsuit alleging pirated software and willful copyright infringement. If a lawsuit is filed and your company does not respond you could be risking a large default judgment award against your firm.
How does the process work?
Here is a general overview of the steps of the audit (this may differ in your case)
1. Demand letter or email
2. Retain software litigation counsel
3. Agree on terms of confidentiality
4. Audit review
5. Submit results and proofs
6. Negotiation process
8. Post-settlement obligations
Do I need a software compliance lawyer on our team?
It is not required to hire BSA audit counsel to assist you. Although bear in mind they often have lawyers on their team, and many times we have seen opposing counsel “team up” putting more that one lawyer or support staff on their team. To me, it is important to consider that if you have never done something before (ex. change your own oil), it can be very difficult and “you don't know what you don't know.” In this area of law, the DON'T KNOW can be VERY COSTLY. We have structured a low flat rate fee designed to make it a NO-BRAINER to have experienced legal counsel on your side to deal with their software attorneys. And, NO, it does not make you look guilty to have a law firm guide your company through this process where even officers and directors of the company can be threatened with liability.
What happens if we find there are software shortages?
It is typical for a company to find shortages of software or over-installation, and even the use of crack codes during a software license audit with the BSA. Our law firm helps mitigate the damages once we are retained.
Does BSA file copyright infringement lawsuits?
Typically, as a third party association, they do not. If you cannot get your case settled with them, they may refer you back to Autodesk, or Microsoft, or Bentley, or Adobe for litigation (for example).
Can you buy software while you are in the middle of an audit?
Check with software counsel before you make this determination. This is a very touch issue with the Software Alliance. They would prefer you NOT buy any software, or delete any software, during the course of a software audit. However, an open question (at least to me, is what if you are cranking out millions of dollars with a particular software product, and the software publisher may seek to hold you liable for actual damages and profits, to me, in this case I have to look at what the value of that continued infringement is). In some cases, you may have to work something out with BSA counsel. Also, if your company is growing and software is needed while the “lawyers are wrangling” over audit terms, there may be times a company needs to purchase software. But again, before doing so it would be extremely wise to discuss with experienced compliance counsel.
What are the typical penalties for software piracy?
VIDEO: Click on the photograph above to watch Attorney Steve® explain more about software compliance penalties (which are a component of software infringement damages). Typically, BSA will seek to have you destroy unlicensed software, pay infringemet fees, attorney fees (i have seen as high as $10,000) and to purchase new software to replace infringing software. They may also try to get you to agree to future audits.
Remember, don't be fooled by a simple software audit fine calculator. These are not always accurate to your case.
What does a federal court lawsuit look like if we want to dispute the BSA in court?
We wrote a blog on what happens if we cannot settle our software audit case with BSA. Here is a PODCAST of some key points.
What are some of the tricks BSA counsel may play during the negotiation process?
There are so many potential tricks in a case I cannot list them all here. Tricks, to me can include negotiation tactics. The one I hate the most (which thankfully I do not have to deal with much anymore) is the one I encountered early on in my dealings with the BSA. They would negotiate a deal with me and then say that it does NOT include an agreement to keep the settlement confidential. If you want that, you have to pay extra. Again, be on the lookout for this if you are a newbie handling your own case. I am not sure if they do this anymore, having handled as many cases with them as our firm has, we really don't see this anymore. But there are certainly other things to be on the lookout for, but I cannot give them all away here. Things that can cost your company money in the long run.
Why should we hire Vondran Legal?
Our law firm is tenacious in our legal representation of our software dispute clients. There are other firms that we have been told seem to “roll-over” for the software companies but not us. We fight for our clients. We seek to find out what lead to the audit, and to try to limit the scope. We ensure confidentiality during the process. We explore and discuss “informant” issues. We use our relationships built up over the years with opposing counsel to seek to negotiate a fair and reasonable settlement, and to ensure the TERMS and CONDITIONS of settlement are fair. If you do not know what you are doing in this area of law it can cost you money. Do not trust a fly by night firm that cannot confirm they have the type of experience that our law firm does (there are many copycat lawyers who write a Blog or do a Video on the BSA because they see us doing business in this area). We have other lawyers calling our office trying to “pick our brains” on how to handle these cases for their clients (who have no clue they are not dealing with an experienced software law firm). As for us:
1. We have been practicing law over 15 years (started in 2004);
2. We have appeared in over 200+ cases dealing with software related disputes; (click the link to see our tremendous online software audit resource center, second to none);
3. We are not afraid of federal court, and not new there. We have appeared in over 135 federal court cases (when we say “go ahead and sue us” its because we know our way around federal court and are not afraid when a low-level BSA lawyer tells us “this one could go to court.”);
4. We have excellent client reviews (over 40 past clients who loved our work);
If you are dealing with a law firm that cannot match up in these areas, you might not be doing your company justice. We are a very experienced software, copyright & IP law firm. To top it all off, we offer low flat rate legal fees, so we are not going to get on an initial phone call with two or three lawyers and try to scare the heck out of you, and then put two or three attorneys on your case BILLING the whole time. You do NOT need to pay this kind of money to resolve your BSA issue.
Attorney Steve® on “Software Audits”
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Some software publishers and trade associations we have dealt with over the years
Here is a non-exlusive list of some of the software publishers we have dealt with over the years):
- Autodesk (we are a leader in Autodesk audits in the United States)
- Software Compliance Group
- Vero (Alphacam, Edgecam, Cabinet Vision)
- Siemens Product Lifecycle Management
- Business Software Alliance (“BSA”)
Can your law firm add up to our experience in the software license compliance area? If not, give us a call.
Contact a Software License Law Firm
Our law firm has represented hundreds of individual and corporate clients who have been faced with dealing with software-related disputes. We have dealt with every major law firm who has represented the BSA including Royer-Copper, The Venable, Weir-Johnson, FDR Law, Annie Johnson and others. Call us for a confidential no cost discussion by calling (877) 276-5084. We have helped companies across the United States, from large to small and everything in between.