BSA Defense Lawyer explains the Business Software Alliance!
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2020 BSA software audit updates: We are seeing slowed activity from the Business Software Alliance headquartered in Washington D.C. (same city as the Copyright Policy Institute) since the Covid / Corona virus hit. Many of the regional copyright law firms we dealt with went pretty quiet. As of July 2020 we are still seeing this hold pretty true. It may be they do not want to burden companies right now with paper audits that take up time and cost money (if software piracy is detected). Believe me, a good number of my clients really get pissed off when a company is trying to survive with layoffs due to the Wuhan bug, but thankfully, it appears they have been pretty good in giving companies some breathing space in these tough times. We will keep you updated.
Many companies ranging from small “mom and pops” architects, designers or engineers (the typical targets of an Autodesk audits), to large regional companies such as media companies, manufacturers, medical and health companies (such as dental) and even law firms, have trusted our IP law firm to guide them through the negotiation and settlement process with the business software alliance (BSA). This blog talks about what the BSA is and what they do when it comes to auditing businesses looking for software licensing shortages and payment for using unlicensed software. If you received a letter from the BSA or one of its many law firms (about 7 or so), call us for a free confidential discussion at (877) 276-5084. We offer low flat rate fees and have handled hundreds of software audits with companies like Microsoft (including SPLA audits), Vero, Siemens, VB conversion, Solidworks, Adobe, and others.
Is BSA law enforcement?
When you first receive a BSA software audit letter, your first instinct might be to believe that it is from the FBI or DOJ and that your business might be immediately raided. Well, thankfully, that does not happen except possibly in the rarest of cases of widespread massive infringement or counterfeiting (especially manufacturing and distributing fake knockoff software).
But NO, the BSA is NOT a law enforcement agency and they cannot issue a subpoena or bust down your business doors and conduct a software raid without a federal court order. Instead, the Business Software Alliance is a “software trade group” or association that scans the marketplace (and receives informant "PIRACY TIPS") looking for instances of unlicensed software usage of its member companies. See the list of members below. They typically hire intellectual property (copyright counsel) to help corner software pirates and force them to conduct a ”voluntary” internal audit and then try to force them to settle their cases for paying hefty fines for the software that was used improperly, without the proper proof of licensing. This is usually where our law firm gets called in.
But, they are NOT law enforcement and do not have the legal power to force you to do anything. However, if you do not respond to their letters, you might have your case referred back to the software publisher, and a copyright infringement lawsuit could be filed, or worse yet, for widespread infringement, a referral to law enforcement could be a possibility.
Can the BSA conduct a private raid of my office?
Again, it is possible that the business software alliance might work with the U.S. Marshal's office to obtain a search warrant and conduct a raid of your business but this is rare. There would have to be solid "probable cause" evidence to obtain the search warrant, and it has been done in the past although infrequently. This is something every company needs to keep their eye on of course, and why having your copyright lawyer to review and advise you on your case is so important. You do not want any production downtime or employee embarrassment at the work place, and if you are an officer or director of the company, you certainly do not want to face the possibility of PERSONAL LIABILITY (despite the so-called corporate veil protection).
What to do when you get a letter from the Business Software Alliance?
We have discussed strategies to fight the Business Software Alliance in many different blogs and videos. If you have not subscribed to Attorney Steve® YouTube Channel - (21k subscribes and growing) you should check out our legal page.
In addition, some other important things to keep in mind are:
1. “Lawyer up” – whatever you say to the BSA reps “can and probably will be used against you” as they say. They have trained intellectual property lawyers and law firms on their teams and it makes sense to make sure you have someone looking out for your best interests. We have handled hundreds of software audits and are one of, if not the LEADING firm in the United States handling these cases.
2. Create a response team that can help to gather receipts, review installations, and get a gauge on what receipts and proof of purchase you may have.
Attorney Steve® Tip: in software audit cases the burden of proving compliance is normally on the business, (not the BSA). Their burden is to show the installations (copying of software), and the burden then shifts to the company to show the dated proof of purchase or other evidence of valid licensing.
3. Keep it confidential - If you are going to handle the case yourself (not recommended but some companies and their in-house lawyers try to do this), you will want to make absolutely sure that you get a confidentiality agreement, with Federal Rule of Evidence 408 protection before you go sharing all of your corporate information with the BSA and its law firm representatives. What you given them can otherwise be used as evidence in a software piracy litigation case. We work diligently to get these agreements in place in order to protect your company in advance.
4. Review affirmative defenses and mitigating factors: These cases are defended based upon negotiating from a position of strength, not weakness. Often times there are issues with insider informants (current or former employees) who are out to sabotage a company or its former employers and who might be motivated by a reward.
Yes, the BSA is known to run ads that deal with “busting” or “nailing” your boss. In our best estimation, the BSA and their attorneys do not sit down with these informants and review their evidence with a critical eye, do not interrogate the informant or check their credibility or veracity. This is just our opinion of what we have seen. In other words, if someone complains, they investigate regardless of whether or not the corporate insider is divulging trade secrets, breaking GLB and HIPAA privacy rules, or violating company policy and procedure. In short, the informants are often aided and assisted in carrying out their revenge. These people need to be scrutinized to the same degree as a witness in a murder trial. These informants are a big part of the case.
All possible defenses to copyright infringement should be explored. The case needs to be made on your behalf AGAINST “willful copyright infringement” allegations and so these must be examined and argued to the fullest possible extent. We have previously written a blog on some of the possible defenses in a software audit case.
These are some of the main issues you will need to be aware of when handling a case with the Software Alliance. Our firm is comprised of experienced LITIGATORS with a proven track record in state and federal court (over 150 copyright cases in federal court).
Unlike other firms, we are not IT “geeks” (to use the firm affectionately) we are battled tested-negotiators and litigators and we seek to FIGHT your case using all the facts and defenses available and not to just lay down and agree to the outrageous demands of the software company and their attorneys.
Listen to Attorney Steve discuss BSA audits on our Vondran Legal Hour Podcast
Which software companies are members of the BSA?
The business software alliance is a trade group consisting of some of the largest software companies on the planet. For example, some of the members include:
1. Microsoft (CAL exchange and window server licenses remaining a hot issue). We also have experience working with KPMG in Microsoft SPLA audits.
6. Rosetta Stone
8. Adobe (fonts now a big issue)
9. Autodesk (Autocad licensing remaining a hot issue into 2020)
There are other members, but these are the main companies we see listed on BSA demand letters.
SOFTWARE AUDIT RESOURCES: Also, for more great information on the topic of software licensing, make sure to check out our software law homepage on this topic for lots of valuable resources and videos.
VIDEO: Watch Attorney Steve® explain Microsoft CAL licensing (often a part of a BSA software audit letter). Make sure to SUBSCRIBE to join over 21,000 others who love our videos!
Contact a Copyright & Intellectual Property Law Firm
The best thing to do when your company or small business receives a “love letter” from the BSA, SIIA, or even a United States company that receives a letter from F.A.S.T. (Federal Against Software Theft) or other “software compliance group” is to immediately contact one of our IP lawyers to discuss your possible defenses and strategy, potential legal exposure and to discuss representation of your company, large or small. Many small businesses get a software audit letter from the BSA.
We have helped numerous companies fight threats ranging from completely bogus and harassing to settling legitimate concerns of copyright infringement with companies such as Microsoft, Autodesk, and others. We offer low flat rate fees (non-litigation cases) while our competition usually likes to charge a hefty up front retainer fee (10-20k) and “bill” you on your case for many months.
We are different. At Vondran Legal, you know what you are going to pay, and we offer tenacious representation with experience in this unique field of copyright law. We know these companies and how they operate and we know how to fight these software companies to get the best deal possible for you with the terms of settlement you need for case closure and peace of mind.
For more information, contact us at (877) 276-5084 or fill out the contact form below to have one of our federal copyright lawyers contact you, normally within the hour. MAKE SURE TO LEAVE YOUR PHONE NUMBER!!!
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