Software Audit Defense Essentials by Attorney Steve®- “The Software Piracy Calculator.”
Some IP law firms may try to trick you into retaining their software audit defense law firm by trying to SCARE THE DAYLIGHTS OUT OF YOU. We have heard of our main competition and their main tactic with dealing with business owners. W9hat we have heard is they will tell you that the SKY IS FALLING (while having two or three copyright lawyers on the phone telling you about all the legal exposure and liability you face (which in part is true) and discussing a “software fine calculator.” The fine calculator is calibrated to scare you with the financial devastation your company faces when dealing with a Business Software Alliance letter. Yes, their fines can be hefty, but a skilled software lawyer can help your company manage and mitigate the risks.
There are many things that can be done to keep the settlement figures down, but being informed that a piracy “calculator” will determine your fate is utter nonsense. There are many factors that go into a settlement agreement, and various techniques for getting audits resolved for less than you might be told.
As a final tip, DO NOT PAY HOURLY FEES, especially if you are dealing with a audit counselor that informs you they need to put two or three attorneys on the case. We have seen one bill where they were $7,000 in BEFORE ANYTHING SIGNIFICANT WAS DONE ON THE CASE. So beware, when it comes to this area of law there is no substitute for experience and we are perhaps the leading firm in the United States handling and resolving software compliance audits for companies large, medium, and small. We perform our services for a PREDICTABLE FLAT RATE LEGAL FEES. You are not paying for the mahogany chairs and fancy offices at our law firm.
Click here to see our Avvo reviews. Click here to see our Federal Court experience (note – if counsel for the BSA, Autodesk, Adobe, SIIA and other software companies knows a law firm does not litigate and has little or no federal court experience, do you think this might make them more BOLD and push for a HIGH SETTLEMENT using threats of litigation? We have appeared in over 100 federal court cases.
What to do if you receive a audit demand letter – the 5 DONT'S!!!
Here is my general TOP 5 “DON'T” hit list:
- Don't panic (getting a letter demanding a license review is not the end of the world, we have helped many companies survive)
- Don't destroy evidence (this could result in spoliation claims if the case goes to litigation)
- Don't call opposing counsel hoping they will be forgiving and understanding (and don't talk to them on the phone)
- Don't under any circumstances send an email or written letter without first discussing with legal counsel
- Don't talk or communicate by text or email with other people (business associates, etc.) about your letter/audit. Your emails could be discoverable if litigation ensues, and what you say could come back to haunt you (with copyright infringement cases carrying the possibility of Officer and Director liability) you cannot afford to take any chances.
Call us below to discuss in greater detail. Keep in mind, trying to handle these cases on your own, or with your corporate counsel or general business counsel could be the BIGGEST MISTAKE you make. Not knowing how the software alliance or Autodesk, Vero or Siemens handle their cases will likely work against you and result in higher settlements.
More about officer and director liability in copyright infringement cases
This is really one of the main reasons you should not unload your legal demand letter on a rookie law firm or even a “software compliance consultant.” They are not lawyers and cannot get you attorney-client privilege or other assurances that can be important in a case. Moreover, if you have legal liability as an officer or director of a company, this could mean that your PERSONAL ASSETS could be on the line. This is NOT HYPOTHETICAL. I get tough nosed opposing counsel that hit me hard all the time threatening to file a lawsuit and holding the owners of a company responsible. Here is a snippet on case law in this area from one federal court case:
“The Ninth Circuit has held that “a corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf.” The Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 823 (9th Cir.1996) (quoting Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir.1985)). The Ninth Circuit has also noted that “[c]ases which have found personal liability on the part of corporate officers have typically involved instances where the defendant was the ‘guiding spirit' behind the wrongful conduct … or the ‘central figure' in the challenged corporate activity.” Davis v. Metro Productions, Inc., 885 F.2d 515, 524 n. 10 (9th Cir.1989) (internal citations omitted). This principle has been by courts applied in copyright cases. See e.g., Bangkok Broad. & T.V. Co., Ltd. v. IPTV Corp., 742 F.Supp.2d 1101, 1114 (C.D.Cal.2010).
See DISH Network, L.L.C. v. Sonicview USA, Inc., No. 09-CV-1553-L WVG, 2012 WL 1965279, at *10 (S.D. Cal. May 31, 2012)
Contact us to discuss your software infringement case
We offer a free initial consultation to companies, business owners, CEO, CFO, CIO, or CTO's who have received a letter from a software publisher or their counsel. In some cases, the audit will be contractual in nature, meaning you are legally bound to perform the audit and their is no “opt-out” (I had one Microsoft lawyer recently inform me there was no opt-out even though these audits are routinely understood to be VOLUNTARY in nature).
We can be reached at (877) 276-5084. We offer low flat rate fees to get your case resolved.
For more valuable resources go to our Software Audit Resource Center (“SARC”).