BSA software audit defense – potential sample response when you receive an unjustified demand to submit to an audit
Fighting a company that is determined to try to punish you for alleged software piracy is never easy. In some cases a company may be unjustly accused of infringing software and not having a valid number of licenses that can be shown with solid proof. But where this is completely unjustified, or the law firm representing the BSA and “all its member companies” each claim a right to audit you through the BSA, (and where you know there is no infringement or illegal copies of software), you might need to take a stand and fight back against the intrusion on your business, IT staff, etc., and believe me, being engaged in a software audit has a way of leaking out to other employees of the company and could actually cause employees to want to leave, or switch jobs for fear of working for an organization that is being targeted and labelled as a “software pirate” This can cause SIGNIFICANT business and reputation damage. Here is one way this issue might be dealt with. This is only a sample and should not be used for your personal or business use. When facing an audit, you should consider SERIOUSLY hiring a copyright law firm to represent you and advise.
Sample response to BSA audit demand letter
After you have a rule 408 confidentiality agreement in place, here is something you might want to consider (this is only one option and it is highly advised that you speak to experienced software compliance counsel before relying on this.
Dear Software counsel
Respectfully, we have a few issues that need to be addressed before this process can proceed any further.
1. You are telling me that even though my Client does not use products from these other companies that somehow you have legal authority to force my Client (on behalf of these BSA members whose products are not at issue) to submit to an audit so that we can satisfy the needs of these companies? That is a fishing expedition and is completely unauthorized as a matter of law, and is frankly disturbing. I need to know your legal grounds.
2. If you have a signed / executed licensing agreement from my Client that authorizes this type of discovery demand that you are making, I demand to see it at this time. If not, we are not going to get pushed around simply because you say so and because you might have some clients that want to know what's going on inside my Client's company (which is intrusive and an invasion of privacy (a potential “tort”) and attempt to acquire corporate trade secrets as to their IT configurations).
3. I would like to see a specific power of attorney from each company that you claim to represent, and want a certification and representation from you that each company you are seeking results from have in fact:
(a) confirmed the evidence you claim to be relying on and
(b) specifically authorized and instructed you and your firm to move forward to conduct an investigation on their behalf.
Your failure to provide this information will be seen as an admission that in fact you have no such authority, and that you have made no such inquiry with any of these individual companies.
4. I also will need some “probable cause” evidence (ex. a licensing report from each company that you claim to be investigating in behalf of, that shows they believe in good faith that there is a software licensing shortage of their software) before I will advise my Clients to just drop everything and go on a fishing expedition on behalf of any client that may have done nothing more than paid the BSA a membership fee, that is simply ludicrous, over-broad and over-reaching. Please confirm if that is really your position. Frankly, this justifies us seeking declaratory relief to adjudicate the claims being made by companies to which no software is being used. We hereby reserve those rights and will execute same if need be.
5. I also need to know who your “secret informant” is, which company, entity or association they complained to, how your firm got involved and what information you are relying on. This is not a game of poker, and since you sent the demand letter you are obligated to act in good faith. We will not give in to a shakedown. As an attorney, you have to have valid evidence before demanding things from people and seeking to disrupt their business, causing time, money and damages. We want to know what the real issue is here without unnecessary gamesmanship.
Please provide the above information if you are expecting any further cooperation.
Copyright Infringement [VIDEO Resources]
- SoftwareAuditLawyer – main page (many great videos)
- What to do when you receive a Microsoft SAM audit letter
- How to respond to an Autodesk audit letter
- BSA software audit defense strategies
- Penalties for copyright infringement
Contact a BSA, Autodesk, SIIA and Microsoft software compliance defense attorney
We have helped many companies both small and large successfully navigate the intricacies of corporate software audits. We have achieved a great deal of success and have dealt with many of the known firms that represent Microsoft, Autodesk, the business software alliance (BSA) and SIIA. We offer low flat rate fees that prevent the “sticker shock” of large monthly ongoing legal bills. Do not pay more for the same service. We can offer a free initial consultation to any company that has received a letter demanding a voluntary self-audit. Simply contact us at (877) 276-5084 to discuss your case with copyright counsel.
Keep in mind that while it might be TEMPTING to handle the case on your own, once you get locked down with the experienced intellectual property counsel that you will normally get pitted against, digging yourself out of the hole might be detrimental to your best interests and can expose your company officers and directors to face unwanted legal liability for willful copyright infringement which is often alleged and literally pushed to the max. We can help you understand your software audit rights and represent you at a fair price that takes the pain out of the process! We represent companies and individual sole proprietors (including media companies, architects, engineers, designers, law firms and others) across the United States on federal copyright law matters.