Business software alliance monitors software use

BUSINESS SOFTWARE ALLIANCE MONITORS SOFTWARE USE
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JEAN-FRANÇOIS JOURNAULT
ROBIC, LLP
LAWYERS, PATENT AND TRADE-MARKS AGENTS
One of the main problems with software piracy is the fact that numerous businesses
that do not possess the appropriate licences for their software are not conscious of
the illegal nature of their operations or the scope of the problem until they receive a
denunciation. However, faulty acts, even if they are involuntary, can have grave
consequences.
The Business Software Alliance (hereinafter "BSA") is often involved in important
interventions against businesses for the illegal use of software. The BSA is an
association that fights against software piracy and whose members include
software developers, such as Adobe, Microsoft and Symantec, whose products are
frequently used by companies. Interventions are usually a result of a denunciation of
non-compliance transmitted to the BSA by an individual having precise information
with respect to this matter.
There are several measures that can be taken to ensure compliance with software
licences and to avoid being a target of the BSA. For example, companies can adopt
best practices in Software Asset Management (also known as "SAM"), or, at the
very least, carry out regular internal audits. Such an audit can include: (i) an
inventory of installed software (software tools to carry out such a task do exist); (ii)
an inventory of acquired licences (taking into account the number and types of
authorized installations and versions of the software used); (iii) a comparison
between the tracked software and the acquired licences; and (iv) a conformance
activity consisting in either deleting non-licensed software or purchasing missing
licences, as appropriate. This process should be repeated regularly.
In addition to the above-mentioned auditing measures, certain practices can
facilitate verification, including: (i) centralizing purchases of software; (ii)
documenting purchases by keeping the proof of purchase of licences; and (iii)
registering the licences with the appropriate software companies. It is also a good
practice to ensure that, when purchasing computer hardware sold with preinstalled
software, the invoice specifies what software is included. Finally, companies should
© CIPS, 2010.
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With ROBIC, LLP a multidisciplinary firm of Lawyers, and Patent and Trade-mark Agents. Published
in the Spring 2010 Newsletter of the firm (Vol. 14, No. 1). Publication 068.118E.
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develop and maintain a policy for software installation and use applicable to all
employees of the company.
When a company has been denounced and the BSA intervenes, it is important to
keep in mind the following. A company should have as much information as possible
surrounding the use of the software in question as of the date of the BSA notice of
non-compliance in order to reduce the risk of subsequent contradictions. More
information should be obtained with respect to the evidence the BSA has and which
justifies its intervention. If there is a significant difference between the actual
situation and that perceived by the BSA, this can be argued in favour of a reduction
in the amount claimed by the BSA. Every allegation of the BSA should be verified in
order to ensure that the alleged illegal behaviour is related to hardware owned by
the company, as opposed to, for example, personal hardware used by employees or
management. If the software was installed without the knowledge of company
management or if the software was installed and used outside the scope of the
employee's functions, this can be considered when determining liability.
Furthermore in the event that a particular situation results in judicial proceedings
or settlement discussions, it is important to note that the BSA is not the official owner
of the copyright in the software of the companies it represents.
Legal counsel experienced in such matters, if notified early in the process, can help
in resolving the issue more favourably for the targeted company
ROBIC, un groupe d'avocats et d'agents de brevets et de marques de commerce
voué depuis 1892 à la protection et à la valorisation de la propriété intellectuelle dans
tous les domaines: brevets, dessins industriels et modèles utilitaires; marques de
commerce, marques de certification et appellations d'origine; droits d'auteur,
propriété littéraire et artistique, droits voisins et de l'artiste interprète; informatique,
logiciels et circuits intégrés; biotechnologies, pharmaceutiques et obtentions
végétales; secrets de commerce, know-howet concurrence; licences, franchises et
transferts de technologies; commerce électronique, distribution et droit des affaires;
marquage, publicité et étiquetage; poursuite, litige et arbitrage; vérification diligente
et audit. ROBIC, a group of lawyers and of patent and trademark agents dedicated
since 1892 to the protection and the valorization of all fields of intellectual property:
patents, industrial designs and utility patents; trademarks, certification marks and
indications of origin; copyright and entertainment law, artists and performers,
neighbouring rights; computer, software and integrated circuits; biotechnologies,
pharmaceuticals and plant breeders; trade secrets, know-how, competition and anti-
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trust; licensing, franchising and technology transfers; e-commerce, distribution and
business law; marketing, publicity and labelling; prosecution litigation and arbitration;
due diligence.
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