Slashdot Mirror
A Look Inside the BSA
die_jack_die writes: "SFGate is running this article about the Business Software Alliance. I'm sure the BSA loves when they get scary stories of their tactics into the press, but this piece does quote the EFF's Fred Von Lohman making the point that companies who don't want to deal with the BSA can always use Open Source software. Most telling quote: 'every cent of those massive settlements stays within the BSA -- member software organizations receive only the licensing fees.'"
I know someone that was audited by the BSA and decided to fight it. Basically they countered by stating they wanted full disclosure of who reported them so as to determine the validity of the claim prior to wasting internal resources and dollars. They also argued that the reporting tools are a violation of privacy. Yes, they expected them to place some software on their network which scans their entire network not to mention each machine's registry. Third, they also argued that even if they were in violation of license, the license is between them and the vendor (after all, the license does not allow for the BSA as having legal proxy interests) and unless the vendor in questions decides that they'd like to personally persue the issue, the BSA does not have legal authority or the legal grounds to persue the action. Furthermore, they argued that even if something odd was discovered and they lost, only the government has the right to impose fines on legal matters as such and they would be within their legal rights to simply purchase any outstanding licenses or settle directly with the vendor in question and completely dismiss the BSA altogether thereby eliminating the need to pay any fines or added fees.
Last I heard, even though two ex-employees had turned them in, the BSA simply walked from the issue as, from what I gathered, they really don't have a legal leg to stand on.
We received a BSA audit notice. We replied, yeah good luck, and told them they could go climb a tree. We received a note saying that the BSA was authorized by our software suppliers to perform this audit and refusal was a violation of our software license. We called several software suppliers and informed them that we were changing companies due to BSA interference, M$ was one of the companies contacted. Within 48 hours the BSA went away and we've not heard back. Their tactics are low and barely legal, you have all kinds of recourse in regards to this kind of issue.
errr....umm...*whooosh* *whoosh* Is this thing on ?
There is no substitute when dealing with bullies like the BSA: make sure you are well-advised. They misrepresent the extent of their powers and advantages in these threatened litigations, wildly mistate their rights under the law and appropriate burdens of proof; but they do have significant advantages that you should never underestimate.
While BSA likes to compare themselves to other licensing enforcement operations, such as ASCAP/BMI, there are fundamental differences, and at the end of the day, these can make substantial differences in the result if you are willing to duke it out.
A truly compliant entity, even poorly documented, can turn the tables powerfully on such a bully. Indeed, even a party who is slightly out-of-compliance can do so, by using a number of devices available at law, such as Offers of Judgment, to turn the tables or test the will of a BSA threat. (Indeed, it may be wise -- again YMMV -- to consider filing a preemptive declaratory judgment action against them for several reasons.)
ASCAP/BMI, when asked, will produce actual opinions of actual cases where they have collected actual damages at trial in comparable enforcement scenarios. Ask a similar question of the BSA -- they will cite to the cases of the Performing Rights Societies and not to those of the BSA.
Ex parte seizures or searches can backfire seriously as well. A 6th Circuit case not too long ago found that a defendant who can show a seizure to have been improper can proceed past a motion to dismiss on a civil rights and trespass claim not only against the overreaching plaintiff, but also against their attorneys. It is a good idea to put them on notice of this fact early in the correspondence.
And from this article, I learned something quite interesting -- their constituents only get the license fees, they retain the multiples they extract. Not so with Performing Rights Societies, who, as understood, are non-profit entities that return their proceeds after costs to the composers and rights owners they represent.
It is therefore essential to get solid representation from someone who knows what they are doing. A stone wall could expose you to substantial liability. On the other hand,
Please do not consider any of the above to be legal advisc beyond the following: get a lawyer who is highly competent in this area to advise you. Specific legal advise is highly fact-dependent, and subtle differences in facts can often necessitate dramatically different strategies. Accordingly, no "cookbook" or single posting can provide you with a clear, definitive solution -- get competent advice and act on it.