Every client and prospective client approaches Scott & Scott, LLP with unique circumstances. We are able to quickly evaluate the facts presented to us, gauge a client’s ability to respond to a BSA audit request, and work with the client to develop a strategy that helps achieve the client’s objectives. We give our clients visibility into the BSA’s processes and outline the decisions that the client must make throughout the course of the audit.
We generally recommend that our clients work with us to evaluate the matter, including conducting an extensive audit of the client’s hardware and software infrastructure to gain a full appreciation of the situation. Our clients typically choose to cooperate with the Business Software Alliance by producing the results of a software audit. Once all audit questions have been answered and a settlement demand is made by the BSA, we aggressively negotiate every aspect of a proposed settlement. If an amicable resolution is not possible, our lawyers are experienced commercial litigators familiar with federal court practice and will aggressively litigate the case in a court battle.
Employees and owners who receive a notification that BSA has initiated an investigation into the company's software usage generally have many questions about the process. The most common question directed to Scott & Scott's audit attorneys is, "What are the potential financial implications of a BSA audit?" Before we can answer this question, we must gather information about the company's technology infrastructure, the software installed, how the company uses the relevant software, and what kind of entitlement records does the company keep. We start each engagement with a thorough evaluation of all of the information requested by BSA. We have developed software tools that allow us to assist our clients in discovering what software applications are installed on the network. We also conduct an in-depth review of the clients' software documentation including media, manuals, certificates of authenticity, end user license agreements, and proofs of purchase. We review and respond to any correspondence from BSA | The Software Alliance, letting it know that Scott & Scott, LLP has been retained as counsel and all future correspondence with your company should be directed to us.
In many instances, after Scott & Scott has had an opportunity to review our clients' deployment and entitlement information, our clients advise us that they would like to cooperate with BSA by producing the results of the audit. Although we object to many of BSA's requests for information during the audit process, our clients often want to utilize BSA's audit framework to get the matter resolved as quickly as possible. We have produced audit results in hundreds of BSA audit matters. We ensure that appropriate confidentiality agreements are in place before we produce any materials to BSA. We work with you to prepare a comprehensive listing of all hardware on your network, an inventory of the software on each of the computers, and applicable proofs of entitlement for BSA | The Software Alliance’s review. Our reports comply with the Software Asset Management Guidelines promulgated by Microsoft to maximize your prospects of a favorable outcome.
When our clients elect to cooperate in the BSA audit process, settlement discussions can last many months. After reviewing the results of an audit, BSA | The Software Alliance often has follow-up questions about the audit materials. Once all questions about the installations and proofs of entitlement have been resolved, BSA routinely proposes a settlement involving exorbitant fines and other draconian non-monetary provisions. Our lawyers aggressively negotiate to substantially reduce the proposed fines and eliminate or soften other burdensome provisions. We work to eliminate BSA-conducted audits of your business and BSA’s ability to disseminate embarrassing publicity about your company. Like all negotiations, this process is unique to your individual business and financial circumstances. Having a seasoned attorney in your corner helps ensure that your matter will be vigorously negotiated.
When the amount in controversy is too great or when the publisher takes an unreasonable position, the parties may not be able to reach a resolution. In the event that an out-of-court settlement cannot be reached, the parties may have no alternative but to litigate the matter. BSA | The Software Alliance and its members often try to include owners and officers of the company in actions for contributory Copyright infringement. The stakes can be high and the outcome uncertain. Many of the legal theories used in BSA’s threatening letters are untested because most of its cases are resolved pre-litigation by agreement. Scott & Scott’s lawyers are ready, willing, and able to defend your company in court if it becomes necessary. Our attorneys have the experience needed to attack the publishers' interpretations of license agreements and litigate complicated issues related to software usage.