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While hunting for material on BSA, I found the most concentrated anti-BSA material here: http://www.bsadefense.com/main/index.aspx

This is a law firm that makes money defending businesses against BSA, so you can be as skeptical as you like. As far as I read, their claims agree with what I have learned elsewhere.

Binding arbitration with non disclosure clauses, it's built into the software they did buy and agree to. They also agreed to the audit.

Unless you signed a contract to that effect, the burden of proof is on the BSA to prove that you in fact are using the software. Unless you have installed and used the software, you have not agreed to the license. Therefore, unless you are using the software, the BSA has no right to audit you. Now, unless the apps you run have a "phone home" feature or use some other online key verification, there are only three ways for the BSA to prove that you are using the software: you can admit to using the software, you can let them come into your place of business and they can observe it, or they can file a lawsuit against you and force you to disclose it during discovery.

If you neither confirm nor deny that you are using any particular piece of software and refuse to let them in, their only option for obtaining proof that they have the right to perform the audit in the first place is to go to court, file a suit, and perform discovery. Thus, unless their evidence is fairly strong, they'll probably back down if the first thing that happens involves your lawyer telling their lawyer to fuck off.

If they do not back down, that's a sure sign that you have some serious compliance problems, and you need to get somebody in there to audit all of your systems ASAP. The folks at BSADefense.com recommend that you have an attorney conduct the audit. This places the results of the audit under attorney-client privilege, meaning that they cannot be obtained by the BSA during discovery. That seems like good advice to me.

As always, the usual caveats apply. IANALBIPOOSD.

When making the case to the boss that they do need to purchase the software and have licenses and proof, the best strategy is to appeal to his self-interest and his desire to cover his own ass.

Explain that if just one disgruntled former employee wants to take revenge against the company, (s)he can make an anonymous report to the BSA and that the fines can be extremely severe.

No sane manager will want to be potentially held responsible by his superiors for millions of dollars in fines and attorney's fees, based on what probably amounts to at most tens of thousands of dollars.

A/C has missed the point... there's a huge leap between not having what the BSA calls a valid receipt and being a software pirate. That's a big difference. Not having all the old software manuals means your software is obviously unlicensed? Come on.

Or do they have the license to damage your business at will?

It's in the EULA.

Forcing their hand does have it's drawbacks.. such as no MS software permitted anywhere..

http://www.penguinista.org/cgi-bin/article?article Id=723
http://www.qcs-rf.com/wordpress/?m=200703
http://bsadefense.com/resources/article_independen t-co-uk.asp

The bad publicity is supposed to shake up pirates to get legit.
The bad karma shakes up legal users into looking at alternatives.

This one swore off MS products entirely due to a BSA audit.
http://news.com.com/2008-1082_3-5065859.html

I've never been audited (since I'm just a faculty member and I don't use proprietary software), so I cannot vouch for its accuracy, but here's a description from an attorney that works in the field:

http://blawg.bsadefense.com/2006/12/bsa_timeline.h tml

Personally, I'd be tempted to farm out the communication with the BSA to the chaps who write the responses for the Pirate Bay. . . .

The BSA is concerned with issues of copyright infringement, not EULA violations.

http://blawg.bsadefense.com/

A New Definition of Software Piracy

What is software piracy? Like many politically charged phrases, the definition of software piracy is influenced by your financial interests and your viewpoint. The Business Software Alliance defines software piracy as:"The illegal use and/or distribution of software protected under intellectual property laws."

The Business Software Alliance specifically includes unintentional business overuse in its definition of software piracy as follows:

"End-user piracy occurs when an individual or organization reproduces and/or uses unlicensed copies of software for its operations."

Armed with this definition of software piracy, the Business Software Alliance pursues global "anti-piracy" campaigns that include the targeting of many small to medium sized companies. The Business Software Alliance accuses these companies of engaging in software piracy and threatens them with litigation unless they voluntarily undergo a self audit. In my experience, the vast majority of the companies targeted by the Business Software Alliance are not pirates under anyone's definition, they have merely failed to maintain financial records related to software purchases that no one, including the software companies, ever told them they were required to keep. In addition, the targets of Business Software Alliance audits are not pirates because they never intended to violate software licenses or copyright laws.

Scott & Scott's Definition of Software Piracy

"Software Piracy is the distribution of counterfeit software and/or use or distribution of authentic software constituting the intentional violation of intellectual property laws."

Our definition of software piracy differs from that used by the Business Software Alliance in that our definition adds emphasis to counterfeiting and expressly excludes the unintentional over deployment of software by end users. Piracy implies theft which under the law requires intent. Any definition of software piracy that includes unintentional over deployment should be rejected. The definition used by the software industry and the Business Software Alliance improperly characterizes software owners as thieves because they have been, at most, negligent in the management of their software assets and documents.

Lost your license key, but still have your original CD and sales receipt? Not good enough for the BSA. Read all the gripes that businesses have about having to over-buy "just in case" the BSA "requests" an audit.

The question isn't what a jury is going to find. It is what the BSA considers acceptable to keep them from taking you to court for software piracy. They know that the enormous litigation costs means that few, if any, cases will ever see a jury.

From Proof of License in BSA Audits:

Not Considered Valid Proof

Copies of Checks to Software Vendors
Dated Purchase Orders
Undated Software Licenses
Credit Card Statements Evidencing Software Purchases
Certificates of Authenticity
Media, Manuals, or Key-Codes
Invoices Bearing and Entity Name Other than the Entity Named in the BSA's Initial Letter

Valid Proof of Purchase

Dated Invoices in the Name of the Audited Entity
Soft Records (online account statements) from Recognized Resellers
Signed and Dated License Agreements
Soft Records from BSA Member's such as Microsoft Licensing Statements
Cash Register Receipts for Retail Sales where Product, Version, Quantity and Price Paid are Included.