BSA's Misleading and Unsavory Tactics in Software Audits

The BSA Targets Small and Mid-Size Businesses, Extracting Settlements with Threats of Huge Damages.

Photo Caption: The Sweater Analogy. Here I am wearing my favorite old sweater. Even if I can't find a receipt for this sweater, that does not prove it is stolen. The same is true for software, although the BSA would have you believe otherwise.

BSA's Misleading Form Letters.

For over a decade I have represented scores of corporate clients from all over the country in software audits and license disputes involving the Business Software Alliance or "BSA".

These disputes usually begin with a form letter to the company (the audit target) from the BSA itself or one of its outside law firms:

This law firm has been retained by the BSA / The Software Alliance in connection with its investigation of possible instances of illegal duplication of certain software companies' proprietary software products....We recently have been advised that [your company] has installed on its computers more copies of [specific software programs] than it is licensed to use.

In follow-up correspondence, apparently cut-and-pasting from a library of form-letters, the BSA's legal counsel tend to push the same demands and legal positions again and again.

However, in my opinion, a number of the BSA's form-letter positions provide either an incomplete picture of the law or mislead as to the requirements of the law.

David vs. Goliath.

This approach by the BSA is especially troubling because, in my experience, the BSA appears to target primarily small-to-mid-size businesses, which may not have ready access to legal counsel with a background in copyright and software disputes. Audit targets understandably fear a legal battle with the deep-pockets of the BSA and its member-companies such as Microsoft, Adobe, Autodesk and Symantec. For audit targets, it may be economically rational to simply pay-up, rather than devote time and expenses to dispute the BSA's demands and purported requirements.

Below are some of the BSA's recurring legal positions along with my commentary:

BSA Misleads on Evidence: Only Dated Receipts. A typical BSA form-letter describing the self-audit will include the following statement regarding the demand that the audit-target provide evidence of its software purchases:

This item must be supported by dated documentation, such as invoices or receipts, as proof of the ownership of each such license. Undated documentation, such as photocopies of software media (e.g...