Business Software Alliance (BSA) Audit Letter! Now What?

May 26, 2016

It may be surprising to learn that The Business Software Alliance (BSA) actually hires law firms to send letters threatening its own business customers that they may be liable for $150,000 for each copyrighted product infringed. The letters often state that the BSA has received information that the business does not have a proper license for software installed on its computers. Although there may be a question as to whether the letter receives is legitimate, appropriate action should be taken. 

First, an attorney familiar with these matters can confirm the legitimacy of the letter because the attorney is likely to have dealt with the counsel of the BSA directly on other matters. It is likely not a “scam” in the sense that the BSA makes legitimate allegations. However, a business that receives such a letter should confirm its source or have an attorney confirm the source on its behalf.

A business that receives a letter needs to respond without sacrificing its legal rights. Although a business may not have any legal obligation to cooperate with the BSA, a business may be able to resolve the matter more quickly and with less expense with appropriate cooperation. Unfortunately, these matters can consume considerable time to resolve even with cooperation and the assistance of an attorney.

Hiring a lawyer experienced with handling allegations from the BSA can help ensure that an internal audit is sufficiently conducted, that licenses are correctly interpreted, and that a reasonable settlement can be reached. Businesses that communicate directly with the BSA, or worse, begin to reply with internal documents or reports can be jeopardizing their legal position if a settlement is not reached.

After the BSA receives results from an internal software audit, it is likely to make a demand that it considers a fine for illegal duplication or use of certain software products. The fine can be a shockingly high amount based on the software allegedly illegally copied. If a business hires an attorney to assist with conducting the audit, the attorney may be better equipped to negotiate specific terms of a settlement. Of course, some businesses prefer to conduct their own audit without the assistance of counsel, and then use a lawyer for representation only. 

In most situations, a business will have to prove that it purchased the software legally. That can mean providing receipts. Problems can arise where a business has not retained proper proof of purchase of the software. Business often have an idea as to what a reasonable proof of purchase should be, but the reality can be different than the expectation. In fact, even a retained proof of purchase may not be acceptable in certain situations. This situation, among many others, can be discussed with an attorney before attempting to settle with the BSA. 

Accordingly, a settlement may contain many requirements that will be ongoing for some time. Hiring an attorney to negotiate the terms of the settlement can help ensure that the terms can be complied with and are understood. A business should also understand that resolving the matter with the BSA will not likely result in the acquisition of any new software or software licenses. Rather a business will most likely be required to remove any infringing copies of software, and consequently, will be forced to purchase additional software.



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