An increasing number of companies face software audits initiated by software publishers and their trade associations, such as BSA | The Software Alliance and the Software & Information Industry Association.
Most companies are totally unprepared; many underestimate their exposure and are unpleasantly surprised by the auditing entities’ analysis. As a result, they wind up paying substantial fines and suffer negative publicity.
Properly preparing for an responding to software audits can reduce the financial and organizational impact on your business. Through years of helping more than 226 clients navigate the audit process, we have found the following software audit strategies to produce the best outcome.
1. Do Not Ignore. Failing to respond to a letter from the BSA, SIIA, or software publisher, will likely make your problems worse and could include litigation against you and your company.
2. Consult Expert Legal Counsel. The publishers and their trade associations have experienced software piracy attorneys, and so should you.
3. Preserve Evidence. Do not uninstall or change computer configurations until an accurate inventory of computers has been gathered.
4. Do Not Use Free Tools Provided By Software Associations. More often than not, they fail to exclude information outside the scope of the audit request.
5. 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.
6. Maintain Confidentiality. Client prepared audit materials and related documentation may be discoverable in a lawsuit. An attorney-supervised audit report is protected by attorney-client and attorney work-product privileges.
7. Condition Audit Disclosure. Software piracy audit materials should only by disclosed after an appropriate agreement regarding confidentiality and non-use of the information has been signed by the software piracy enforcement agency.
8. 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. You can use Scott & Scott, LLP’s software piracy fine calculators at BSA Fine Calculator.
9. 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.
10. 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 these settlement terms, the nature and scope of the release being offering.
11. Focus On Your Business. Continue to stay focused on running your business and taking care of your customers.
For more information, visit : http://www.bsadefense.com
Robert J. Scott, Managing Partner of Scott & Scott, LLP, an intellectual property and technology law firm, represents mid-market and large enterprise companies in software license transactions and disputes with software publishers and their trade groups.