Business Software Alliance Letter: Scott & Scott, LLP Shares Time-Proven Software Audit Best Practices

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Many businesses do not know what to do when they receive a letter from BSA | The Software Alliance (a/k/a Business Software Alliance) requesting a software audit. Intellectual property and technology law firm, Scott & Scott, LLP, with a practice area focus on software defense, shares software audit strategies.

Robert J. Scott, Managing Partner, Scott & Scott, LLP

When you receive a letter from the Business Software Alliance, don’t ignore it.

Each year, hundreds of letters from the Business Software Alliance’s attorneys are issued to companies accused of installing more software on their computers than they have purchased licenses for.

BSA | The Software Alliance is the global advocate for the software industry. The trade association which includes large software publishers such as IBM, Oracle, Microsoft, Adobe, Symantec, and Autodesk, conducts copyright enforcement actions on behalf of its members. It solicits confidential software piracy tips in exchange for potential cash rewards by repetitively advertising on the Internet and on dozens of U.S. metropolitan area radio stations. This sets the process in motion which may culminate in a letter being sent from the BSA’s legal counsel requesting a software self-audit.

“When you receive a letter from the Business Software Alliance, do not ignore it, even though the BSA has no independent law enforcement authority. Its rights are derived from a power of attorney provided by its member software companies. Failing to respond will likely make your problems worse, leaving the BSA with no other option but to institute litigation against you and your company”, said Robert J. Scott, Managing Partner, of Scott & Scott, LLP. Rob has defended over 225 software audit matters initiated by software piracy trade groups such as the BSA and SIIA.

If your company has been accused of software piracy, here’s what Scott & Scott, LLP suggests you should do:

1. Hire an Attorney. The Business Software Alliance (and other software trade groups like the Software & Information Industry Association) have experienced software piracy attorneys, and so should you.
2. Preserve Evidence. Do not uninstall or change computer configurations until an accurate inventory of in-scope computers has been gathered.
3. Avoid Knee-Jerk Purchases. A natural but counterproductive response to a software piracy audit is to run out and purchase software. Avoid making purchases until a complete inventory and case assessment has been completed.
4. Maintain Confidentiality. Client prepared audit materials and related documentation may be discoverable in a lawsuit. An attorney-supervised audit reports is protected by attorney-client and attorney work-product privileges.
5. Condition Audit Disclosure. Software piracy audit materials should only be disclosed after an appropriate agreement regarding confidentiality and non-use of the information has been signed by the software piracy enforcement agency.
6. Estimate Software Piracy Fines. Always review the draft audit materials with your attorney before they are produced to make sure everyone is clear on the potential financial exposure involved. Scott & Scott, LLP’s software piracy fine calculators are available at: BSA Fine Calculator.
7. Argue Software Piracy Legal Issues. There are many legal issues involved in software piracy audits including what constitutes infringement, who has the burden of proof, how damages should be calculated, what constitutes proof of ownership and many others. These legal points should be vigorously argued in an effort to reduce software piracy settlement demands.
8. Negotiate Non-Monetary Terms. Software piracy audit settlement agreements are incredibly one-sided and unfair to the targets. Carefully consider important issues like future audit obligations, confidentiality of the settlement terms, the nature and scope of the release being offered.
9. Focus on Your Business. The only way to be successful in a software piracy audit is to continue to stay focused on running your business and taking care of your customers.

For additional information, visit BSA Audit FAQ.

About Scott & Scott, LLP (http://www.scottandscottllp.com) (http://www.bsadefense.com) is an intellectual property and technology law firm representing businesses in matters involving software licensing. Scott & Scott, LLP’s legal and technology professionals provide software audit defense and software compliance solutions, all protected by attorney-client and work-product privileges.

Robert J. Scott, a recognized expert on software compliance and defense, is available for interviews.
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