Software Audit Target Fights Back in Court

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Software & Information Industry Association (SIIA), Adobe, Corel, McAfee, Symantec, ADP, Idaho Auto Auction, and former IT administrator sued in federal court to determine who is legally responsible for unlicensed software.

Robert J. Scott

This case highlights a number of questions regarding legal responsibility for software copyright infringement.

A recent Northern District of Idaho case (1:11-cv-00310-REB) should shed some light on how to apportion legal liability for copyright infringement damages related to business software usage, says Robert J. Scott, Managing Partner, of Scott & Scott, LLP, whose law firm represents companies targeted by the Software & Information Industry Association (SIIA).

In Brasher’s vs. Software & Information Industry Association et al., the plaintiff, a target of an SIIA software audit, filed suit asking the court to determine who is legally responsible for the unlicensed software found on its computers during the audit. Brasher’s included its former IT administrator as a defendant and presumed informant for his role in an installing the software and seeks indemnity from the company it acquired the assets from.

“This case highlights a number of questions regarding legal responsibility for software copyright infringement,” Scott says.

Brasher’s alleges in its complaint that it purchased the assets of Idaho Auto Auction which included a number of computers. Thereafter, they claim that a former IT administrator of Brasher’s installed non-licensed copies of Adobe software on their computers. The employee, Gillespie, was allegedly in violation of the company’s polices and he was subsequently terminated. The plaintiff further alleges that Gillespie later informed the SIIA that Brasher’s had pirated software.

The Software & Information Industry Association (SIIA), a trade association of software publishers, including Adobe, Corel, McAfee, and Symantec, conducts software copyright infringement audits on behalf of its members.

One of the claims in the complaint was that Brasher’s had no knowledge that the computers contained allegedly infringing software when it acquired the computers.

“This case underscores the importance of due diligence and properly documenting asset transactions involving the sale of computers with software installed. Lack of knowledge or intent is usually not a good defense to a copyright infringement claim where liability attaches without regard to fault or knowledge”, said Scott, whose firm has handled over 300 software audit cases.

About Scott & Scott, LLP:

Scott & Scott, LLP ( 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.

See attachment for full complaint.


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