New York Big Source of BSA Software Piracy Leads

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The Business Software Alliance (BSA) recently identified New York as one of the top six states providing software piracy tips in 2010. Robert J. Scott of Scott & Scott, LLP, an intellectual property and technology law firm, with a practice area devoted to software license defense questions many of the BSA’s practices and offers advice to New York business executives and owners who receive a BSA letter with a software audit request.

Scott & Scott, LLP

I have seen many businesses make the mistake of using an inadequate tool to conduct the kind of audit called for by the BSA.

New York was recently identified as one of six states that accounted for 49.3% of the software piracy leads the Business Software Alliance (BSA) received in 2010.

The Business Software Alliance (BSA), a global software industry trade association owned and funded by big name companies, including Adobe, Apple, Autodesk, Microsoft, Sybase, and Symantec conducts copyright enforcement actions on behalf of its members. The BSA’s anti-piracy campaign on the Internet and in radio ads solicits software piracy leads which annually average 2,223 reports.

“Although I have no objection to software publishers seeking to enforce their intellectual property rights and using a trade association like the BSA to do so, in my opinion, many of the Business Software Alliance’s practices are questionable. The BSA entices disgruntled employees, many of whom were responsible for any license compliance gaps, to report their current and former employers with the promise of cash rewards, which may or may not be forthcoming”, says Robert J. Scott, Managing Partner of Scott & Scott, LLP, whose firm has handled hundreds of software license defense cases.

What New York Businesses Need to Know

The BSA usually initiates an investigation after it receives a confidential report of unauthorized software use. Targeted companies are contacted by the BSA’s attorneys who request that the company conduct a self audit and report the results. Companies targeted for a software audit are not required to cooperate with trade associations or publishers, but resolution without litigation is highly unlikely unless the target company agrees to participate in a voluntary audit. “We usually recommend cooperation and not litigation”, Scott says.

A number of legal issues are implicated in software audits. Although software usage is governed by a contractual license, the software industry generally relies on the stronger protections afforded to the federal Copyright Act of 1976. The act provides stiff penalties –up to $150,000 per violation if the infringement is willful. In addition, officers and directors of corporations who infringe copyrights may be found individually liable.

The audit process is lengthy and arduous and often affected by costly mistakes. Scott says, “I have seen many businesses make the mistake of using an inadequate tool to conduct the kind of audit called for by the BSA.”

There are many ways a business can tackle a software audit. It may hire a law firm that specializes in software audits or hire an external IT consultant or do an in-house audit. The BSA often suggests a number of tools to assist with a self-audit, many available for little or no licensing fee, making them appear to be attractive alternatives. Because software tools are not sophisticated enough to discern between free trial software or remnants from previous installations and full installations, it can result in significant consequences. When conducting an in-house software audit, look for any mistakes in the audit results to ensure that the report reflects what was installed as of the effective date of the audit before submitting any information to the auditing entity.

About Scott & Scott:
Scott & Scott, LLP (http://www.scottandscottllp.com and http://www.bsadefense.com) is a boutique intellectual property and technology law firm with an emphasis on software disputes, technology transactions, brand management, and federal litigation. Our lawyers and technology professionals take a principled approach to each engagement, leveraging our experience to provide value. Our clients range from mature small businesses to publicly traded multi-national corporations who work proactively with us to creatively solve business and legal issues. We regularly work as part of a team of in-house and outside attorneys managing large-scale legal projects. We take the time to listen to a client’s objectives and understand its business before developing a custom strategy and project plan designed to give the client visibility into the process and the potential outcomes.

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