Q. I have been accused of software piracy by BSA The Software Alliance. What is the correct definition of software piracy?

A. According to Merriam-Webster the word Piracy is defined as:

Definition of piracy

1an act of robbery on the high seas alsoan act resembling such robbery

2robbery on the high seas

3athe unauthorized use of another's production, invention, or conception especially in infringement of a copyright

bthe illicit accessing of broadcast signals

The BSA Software Alliance has done an excellent job painting its member software companies as the victims of widespread IP theft.  It has promulgated a view that the accidental over-deployment of software by an audited entity is tantamount to an act of robbery on the high seas.  While the unintentional over-deployment of software may constitute copyright infringement or breach of a software license agreement, to refer to these cases as software piracy matters is improper. 

Q. It’s 2021 and we just received a letter from BSA The Software Alliance. How should we respond?

A. The global pandemic has affected virtually all industries with many struggling to keep their doors open while others have been destroyed by the adverse economic effects of covid-19.  Dealing with a software audit from BSA The Software Alliance adds extra stress in an already stressful time.  How to a respond to an audit from the BSA The Software Alliance will depend on a number of business and legal issues including: 

  1. How is the business doing overall?
  2. What percentage of revenue or profit are in controversy in the BSA’s audit?
  3. What BSA member publisher’s software is at issue in your BSA audit case?
  4. What entitlement documentation is available to establish the defense of license in a BSA audit?

Are you looking for experienced legal counsel to assist you with a BSA software audit?  We can help you determine the best response during our free initial consultation. 

Q. What is BSA | The Software Alliance?

A.  BSA - The Software Alliance is an industry trade group whose members include software giants such as Microsoft, Adobe, Symantec, Macromedia, and Computer Associates.

Q. What authority does BSA | The Software Alliance have to conduct audits and levy fines?

A.  BSA has no independent law enforcement authority of any kind. Its rights are derived from a power of attorney provided by its member software companies. Those companies have rights created by their software license agreements and under the laws protecting copyrights.

Q. What will happen if I ignore correspondence from BSA | The Software Alliance or its lawyers?

A.  BSA is well funded and very aggressive. Attempting to ignore the problem by not responding will likely make your problems worse, leaving the BSA with no other option but to institute litigation against you and your company.

Q. What are my options for complying with the requested self-audit from BSA?

A.  To conduct a self-audit you can either use your internal staff, retain the services of an outside IT vendor, or use the services of an experienced law firm such as Scott & Scott, LLP.

Q. What are the benefits of an attorney-conducted software audit?

A.  Unlike internal audits, and IT-vendor audits, attorney-conducted audits are fully protected by the attorney-work product and attorney-client privileges. The results are protected from disclosure and therefore cannot be used against you or your company in court.

Q. I just received a letter from BSA, what will happen if I purchase the missing titles now?

A.  BSA will not give you credit for any titles purchased after the date of the audit letter and will likely seek sanctions against your company based upon “spoliation” of evidence in the event of litigation. If you have been contacted by BSA, you should retain experienced counsel to guide you through every step of the process.

Q. Can I find out who made the report that resulted in a BSA audit of my company?

A.  BSA will not voluntarily release the names of their informants because the promise of confidentiality increases the volume of reports. In the event of litigation, it is likely however that the factual basis for the allegations in the lawsuit, including the informant’s information, may be discovered.

Q. If BSA has no regulatory authority, why would anyone cooperate?

A.  BSA's members are aggressive about ensuring compliance with software licenses and will likely file suit if they have no response from a BSA target.

Q. What is the most important part of the investigation portion of a BSA audit?

A.  Obtaining an inventory of network deployments that is accurate as of the date of the BSA's opening letter and getting complete entitlement records.

Q. Should I take the BSA matter seriously?

A.  Many BSA matters result in six-figure penalties and should be treated like any serious legal matter.

Q. How long will it take Scott & Scott to give us an estimated financial exposure?

A.  In most cases, it takes three to six months to evaluate sufficient information to make an estimate.

Q. Can Scott & Scott collect deployment information without traveling to our office?

A.  Yes, in most cases the network inventory can be conducted remotely.

Q. Do I have to use BSA-recommended tools to conduct the network inventory?

A.  No, BSA will often accept audits conducted using other software asset discovery tools.

Q. Does the BSA ever reject proofs of entitlement?

A.  BSA will reject an invoice or other entitlement if the purchase price is too low, if the vendor is not reputable, or if the proof does not contain all of the required information.

Q. How soon after producing audit materials will I receive a settlement demand?

A.  Settlement demand can be received the same day, or many months after production of the audit, depending on a number of factors.

Q. Can you help us even if we have already submitted our audit materials?

A.  Yes, Scott & Scott can assist clients during every stage of the BSA audit process.

Q. How long will it take to resolve my BSA matter?

A.   A typical BSA audit matter is pending 12-18 months.

Q. If I hire an attorney, will the BSA assume I am hiding something?

A.  Absolutely not. BSA's attorneys understand that clients who have done nothing wrong need an experienced resource to guide them through the process.

Q. Will BSA or its members notify me before they file suit?

A.  Not always. In some instances, the lawsuit may be a surprise.

Q. Where would a lawsuit be filed?

A.  The venue of the suit would depend on the nature of the case and any forum-selection clauses in the relevant software licenses.

Q. Can I file suit against the BSA or its members?

A.  We evaluate potential litigation matters on a case-by-case basis. Some of our clients have filed suit against BSA members.