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Is the BSA "Grace Period" a Scam?
An anonymous reader asks: "I work at a small non-profit that has 18 employees plus a 13 seat computer lab. We received a form letter from the Business Software Alliance (BSA) telling us to do a self audit and if we find any unlicensed software to report it during our 'Grace Period' because 'if you organization's software is not licensed, it could become to focus of a BSA investigation'. Now this is obviously a method to scare up some business for the BSA members. If we ignore this, how likely is it that we will be 'investigated'. I know that I cannot produce the original CD's and/or documentation for some of the software that we HAVE paid for."
from http://www.newsfactor.com/perl/story/9921.html:
:
CAAST -- a nonprofit industry alliance group that counts among its members Adobe Systems, Apple Canada, Microsoft Canada, and Symantec -- said that one in every three business software applications in the country was pirated in 2000.
On a positive note, the report showed a four-year decline in the software piracy rate, dipping to 38 percent last year from 41 percent in 1999 and 40 percent in 1998.
"Although the piracy rate has decreased, software piracy continues to signify lost jobs, wages and tax revenues in Canada," said CAAST president Allan Steel. "Organizations need to realize the importance of implementing policies and procedures in order to achieve and maintain compliance."
The rest of the world, on the other hand, is not quite as obedient
The BSA and CAAST studies, which were conducted by the independent International Planning & Research Corporation (IPR), also found that for the first time in six years, the world piracy rate increased, edging up to 37 percent in 2000.
I checked their About page and found the following statement:
Promoting a safe and legal online world
The Business Software Alliance (BSA) is the foremost organization dedicated to promoting a safe and legal online world.
We are the voice of the world's software, hardware and Internet sectors before governments and with consumers in the international marketplace. BSA members represent the fastest growing industries in the world.
BSA educates computer users on software copyrights and cyber security; advocates public policy that fosters innovation and expands trade opportunities; and fights software piracy.
Nothing in there suggests any legal authority. They are advocates not enforcers. Those letters strike me as very misleading. Anyone want to post a copy?
A scam, probably not. Is it smart, also probably not. Im in the chicagoland area and have been hearing the commercials for BSA on the radio everywhere across the dial. What they are aiming for is to get people turned in by relying on an unhappy employee to rat them out.
That being said, keep in mind that the BSA is just an organization set up to find pirated software and collect fees. Fees that they no doubt get a cut of. They seem to have no problem using peoples fear and turning it into the driving force of their biz.
You are under NO obligation to report anything to them, unless they hand you a court order. They are an independent entity and have no more ability to legally inspect your systems than I would. so it would be in their best interest to make it seem that they do have that ability
This seems to be a page right out of the RIAA playbook, pretend something is true and youll fool at least some of the people
You can fool some of the people some of the time, all of the people some of the time, but never all of the people all of the time
Microsoft is part of the BSA and in their agreement they can damm well do this. Still didn't stop me from ignoring it.
As my lawyer told me, replying to it simply gives them a name and address to send more correspondance to.
So I threw mine away.
Why do overlook and oversee mean opposite things?
When we get the same letter (each and every year) we promptly throw it out. The first time we got one we asked our corporate lawyer what rights they have. If they do decide to come to your door, simply kindly turn them away. They can only "audit" your premisis with the help of a warrant from the US Marshals. Note that if you do turn them away, they very well might come back with said warrant. YMMV.
-- Cameron
however, if they have a witness that says the organisation has illegal software they'll get a court order.
nosig today
...This is the BSA, in the UK, right?
So how exactly do they propose to check up on me anyway? On what legal basis can they force me to let them into my business to perform an "audit" to their satisfaction? Who the hell do these people think they are anyway?
This is just the usual scare-mongering. It's about time someone stood up to people like this and made them produce some evidence and go to court. Better yet, let them go after a legit company, and sue them for some form of defamation afterwards.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
So long as they can find one (disgrunted former) employee willing to testify under oath that the you have unlicensed software, they can make you do the audit at your own expense.
"Beyond a reasonable doubt" is only for criminal charges, for a civil case they only need to be able to prove their side better than you can prove yours. One fired loser is a weak hand, but it still beats a zero...
You should keep the originals in the firesafe and put the copies in the public binders. Not the other way around.
Well first off we received a phone call from them after we first ignored the three letters they sent us. Then we basicaly said okay sure sure sure to them on the phone, have a nice day- Click. Then we ignored them some more, and that was 2 years ago and we have not heard back from them.
Of course you should be paying for the software, and if you do not have the licenses I suggest you get this resolved. A receipt should be sufficient enough to track down when/where the software was bought. You have 20 computers, and a receipt for 20 copies of MS-Office..well guess what, no lawyer in their right mind would go to a judge with this. Do not tell me you have no receipts for the software,, what kind of mickey mouse outfit are you working for? The IRS is going to be your next problem!
So in the long run I would just ignore them. Go ahead and do an internal audit of which you lose the documentation, then I would start buying software in a one and two a month type scenario. Nothing to break the bank.
In any case DO NOT LET THEM COME DO AN AUDIT! They have no right to enter your buisness, and they will not do this without a court order. And if they have a court order your lawyers can fight this easily. It is impossible for them to prove they have a shread of proof, and anything that an disgruntal ex-employee has said is hearsay.
We think the reason they contacted us is because an ex-employee wanted a raise since he just graduated a CCNA course and was Cisco certified (I find this amuzing since he took a class for 2 years on the CCNA test which has a book of less then 500 pages), problem is that it was not his job to work with Cisco equipment and we have no positions available for him. Since he was an asshole and demanded a raise we fired him, so we think he called the BSA and said we were illegal for Adobe software because the software cabinet the IT department has only has 2 copies of the Adobe Acrobat software, what the moron does not know is that we have 15 copies of it in different departments maintained by that department since it is specialized software and only a few people get (The IT department maintains a copy of the license and screen prints, also copies of the receipts are filed in the IT office which he would not know about since he was a tech, and shitty one at that!). It is installed currently on about 10 peoples computers.
They have whatever authority you agreed to when you clicked through that license agreement. You _did_ read that thing, right?
Whilst the essence of your statement is true - the retention of all relevant documentation is professional practice - the author may have been faced with the situation where he inherited a setup where poor record keeping was the norm. I faced a similar situation at a small company a while back, were the BSA sent said letter soon after my employment. I raised the issue with the boss, along with informing him of the rather paltry record keeping history prior to my starting (Things like a few OEM pcs with preinstalled Windows98 SE, small software packages etc, but no media or license retention). Although we did have the invoices detailing what was purchased, it was deemed insufficient by the BSA as proof of license compliance requirements, so to avoid drama and expidite the process,the various software was purchased again. I often wondered if I could have gone to MS about the W98 SE issue and seen what may have been possible - i.e. whether the particular details (we had the invoices and obviously the reg numbers from the pc itself) were enough in themselves to confirm we 'had' a license?
"Get off the cross - we need the wood" - Tori Amos
Here is the letter we got, mispellings are mine, formatting isn't perfect:
BSA, 1150 18th Street NW, Suite 700, Washington, DC 20036
Is your business using unlicensed software? If so, the Business Software Alliance is offering a one-month opportunity to get licensed. Your BSD Grace Period Participation ########
January 22, 2002
MY ADDRESS
Dear FOO,
You may have heard that the Business Software Alliance is investigating ANYTOWN area organizations that use unlicensed software. If your organization's software is not licensed, it could become the focus of a BSA investigation. So, audit your software now. Unauthorized copying is the same as stealing. The penalties for copyright infringement are serious - sometimes totaling hundres of thousands of dollars - and in this economy, can your business affort that risk?
BSA is an association representing the leading software companies: Adobe, Apple, Autodesk, Avid, Bently Systems, Borland, CNC Software/Mastercam, FileMaker, Internet Security Systems, Macromedia, Microsoft, Network Associates and Symatec. Together with our memebers, we educate the public about software compliance and protect intellectual property rights.
Would you be able to tell if an employee had installed an unlicensed software program? Your business has until February 28 to get licensed.
BSA recognizes that, for whatever reason, your company may not have managed its software assets properly. That's why from February 1-28, BSA is offering a Software Grace Period to business like yours in ANYTOWN. Please take this time to review your software installations and usage and, if necessary, acquire the licenses your business needs. If, after you have participated in the Grace Period, your organization becomes the focus of a BSA investigation, BSA will not seek to impose penalties for any unauthorized copying that occurred before February 28, (unless your organization has already been informed that it is under investigation). If BSA contacts you, just show your Grace Period Participation Nuber and the software purchase receipts. [Please see the reverse for terms.]
Not sure if your organization is fully licensed? BSA can help you find out.
Visit our Web site at www.bsagrace.com for more information and to download the free Software Audit Tool, or call our special Grace hotline at 1-877-536-4BSA (1-877-536-4272). If you find that your business isn't 100% licensed, contact your software vendor immediately and buy the software licenses you need before the Grace Period ends on February 28.
Sincerely,
Bob Kruger, Vice President, Business Software Alliance
Grace Period Participation Terms
Bsd is offering a one-month Grace Period between February 1-28, 2003.
1. For your organization to qualify for the Grace Period campaign:
2. If, after you have participated in the Grace Period, your organization becomes the focus of a BSA investigation, BSA will not seek to impose penalties for any unauthorized copying that occurred prior to February 28, 2002 (unless your organization has already been informed that it is under investigation). If the BSA should contact you, just show your Software Grace Period Participation Number and software purchase receipts.
3. For the purpose of the Grace Period, BSD members are: Adobe, Apple, Autodesk, Avid, Bently Systems, Borland, CNC Software/Mastercam, FileMaker, Internet Security Systems, Macromedia, Microsoft, Network Associates and Symatec.
So treat the BSA the same way you would CompUSA.
I know the CompUSA drill pretty well by now, but I still occasionally get sort of annoyed when some half-asleep kid wants to frisk me on the way out of the store, even when I purposefully stop at his little podium and hand him a receipt for my purchases while waving a transparent bag under his nose.
Last time I was down there, that was exactly the situation, so I asked the guy, "Are you serious? What would you do if I refused?"
He said, "I'd tell you to have a nice day."
'Nuff said.
Breakfast served all day!
Original at http://www.eweek.com/article2/0,3959,19093,00.asp
... That was a fishing expedition."
July 30, 2001
Truce or Dare
By Michael R. Zimmerman
If you're a small or medium-size company, there's a good chance you've heard from the Business Software Alliance about getting your software compliant with its licenses. If not, you probably will. The group is well into a nationwide letter and radio campaign to do just that.
But what you probably don't know is that, like so many of the companies that stuff your mailboxes with junk mail, the BSA, which represents such software giants as Microsoft Corp., Adobe Systems Inc. and Apple Computer Inc., has no intention of following up on its letters--regardless of how threatening and personal they may seem. It won't phone. And it won't pop in for a surprise audit.
Instead, an eWeek investigation reveals, the BSA's campaign is primarily a marketing effort essentially designed to scare people into buying more software. But for many enterprise customers who are quickly becoming fed up with the group's hardball tactics, the campaign is having the reverse effect: compliance, then departure to alternative products, like open source.
The reason the BSA Truce Campaign is more bark than bite is simple: As part of each Truce Campaign, the group sends out hundreds of thousands of letters at a time to businesses in a handful of cities. For the month of July, for example, it mailed 700,000 letters to businesses in five cities between New York and Portland, Ore. As such, it would be virtually impossible to contact even a sample of those companies to check up on their progress or lack of progress.
Indeed, one of the only ways the BSA is gauging the success of the Truce Campaign is by the size of the spike in software sales for various cities as the BSA passes through, which so far total 19.
"Everywhere we've run the Truce Campaign, we're seeing dramatic increases in sales," said Bob Kruger, vice president of enforcement for the BSA, in Washington. "So it's being successful."
But a deeper look into the Truce Campaign, as well as an ongoing and almost identical anti-piracy campaign by Microsoft, a founding member of the BSA, reveals something more complex: the possible beginning of an entirely new business model built around anti-piracy and fear. The bottom line: There's money in anti-piracy, and plenty to go around.
To be sure, piracy results in major losses of revenue for the software industry. According to the BSA, $2.94 billion was lost to piracy in North America alone last year, while $11.75 billion was lost to it globally for the same period. But so far this year, those figures have declined.
Since the launch of its enforcement campaign in North America in 1993, however, the BSA has brought in about $70 million in settlements, a mere drop in the bucket compared with the overall total. Now it seems the industry, with the help of the BSA, is taking a new tack, with its focus on generating revenue the old-fashioned way.
Consider the following: Microsoft has been busy constructing a network of support services through distributor and licensing partners to assist customers in assessing and auditing their software to comply with their licenses.
One Microsoft partner, License Online Inc., of Bellevue, Wash., tracks where the BSA is headed and rounds up as many of its 36,000 registered channel partners as it can for those cities to swoop in and sell licenses.
"When we know what area the BSA is going into, we're going in scrambling to piggyback on their marketing efforts," said Sharon Erdman, vice president of marketing for License Online.
License Online offers its partners across the United States a 12 percent commission on any licenses they sell through License Online. To get the contractors rolling, the company supplies them with a list of companies Microsoft has sent its anti-piracy letters to. In addition to commissions, the contractors are told the companies contacted have the potential to become "long-term" customers.
"Microsoft has absolutely partnered with businesses who can address the concerns," according to Devin Driggs, a Microsoft spokeswoman in Lake Oswego, Ore. "It feels a responsibility to its customers to address any issues with compliance they may be experiencing."
As far as the anti-piracy fight becoming a business unto itself, Driggs said Microsoft views the subject as an industry issue.
Kruger acknowledged that the BSA's letter campaign is a direct marketing campaign designed to encourage users to get in compliance and not directed at any company in particular. The group uses common mailing list companies such as Dun & Bradstreet Inc. to generate the lists.
Microsoft's campaign is more deliberate, company officials said.
"I don't think we're doing anything that's random," said Nancy Anderson, associate general counsel for the company, in Redmond, Wash. As part of Microsoft's licensing agreements for its products, Anderson said, "the customer agrees to assure us they are current. The obligation is on them to assure them and to undertake an audit if requested by Microsoft."
Not surprisingly, however, the hardball tactics are having a negative effect on customers.
"We were nailed for tens of thousands of dollars," said Cary White, an IT manager at a financial services company in San Diego who acted on a letter from Microsoft. "We received a letter addressed to our CEO that they received a tip we were not compliant with Windows, Word and Excel.
"My company is to completely go away from Microsoft," White said. "We're not going to buy any more Microsoft products. It's my decision. They're alienating their customers. I don't trust them."
The fear factor
For the BSA and Microsoft campaigns to work, the fear factor is essential, according to letter recipients contacted by eWeek.
"[Fear] is the first emotion when you get the letter. It's like, 'Oh my God, the Gestapo's coming,'" said Robert Fuller, president and chief operating officer of R.E. Fuller Engineering Consulting, a one-man company in Camas, Wash.
The BSA has struck fear in customers' minds through carefully worded, but threatening letters and an accompanying radio ad blitz warning businesses to beware of disgruntled employees dropping dimes on them.
According to the BSA's Kruger, the Truce Campaign is merely a 30-day grace period companies can use to get their software in compliance. If a company does use the time to get in compliance, it will avoid any potential future BSA investigation that may spring up as a result of its radio ad blitz.
But that doesn't explain the BSA's use of what many are calling threatening language. What's troubling to businesses, besides not being informed on how they were selected for the mailing list, is the letter's accusatory tone. For example, one line reads: "If you're caught [with unlicensed software], your organization could face penalties totaling hundreds of thousands of dollars."
And while Kruger insists the Truce Campaign is not a vehicle for generating leads or tips, that contradicts the thrust of the BSA's radio spots.
For example, at one point, the announcer in a radio spot for the Truce Campaign currently running in New York asks Kruger how the BSA receives most of its leads. Kruger responds: "Most of the calls come from current or former employees. I would say to businesses that, unless you have no current or former unhappy employees, you are only one phone call away from becoming the target of a BSA investigation."
"My management's concern was that there was almost a bit of paranoia about [the Truce Campaign]," said Peter Rassmussen, a technology manager at a Midwest retailer. "There were radio ads going on at the same time that sounded like Joe Stalin encouraging you to turn in your parents."
As for Microsoft, Anderson said, it's not in the company's interest to frighten customers. "We don't want to create anxiety," she said. "It's not our interest."
Misleading the pack
Exacerbating the anxieties for companies contacted by eWeek that have received Truce Campaign letters was the seemingly intentional vagueness of the letters, vagueness that is compounded by misleading information.
For example, though the Truce letter establishes a 30-day deadline for software reviews and includes a line that states, "If the BSA contacts you, just show your Truce Participation Number and software purchase receipts to take advantage of the Truce," the BSA has no intention of contacting any letter recipient.
But at least one radio spot, the one currently playing in New York, implores letter recipients to "review your software installations and acquire the licenses you need before the Business Software Alliance returns to New York City!"
Still, Kruger insists: "We don't visit any of these companies. The ones getting the letters are not under investigation."
When asked if these discrepancies were misleading or at least confusing, Kruger said any letter recipient who is confused can go to the BSA Web site or call the Truce hot line for information.
Also at issue is ironing out exactly what authority the BSA has to present deadlines, request software reviews or even conduct audits. According to Kruger, the only authority the BSA has, as power of attorney for its members, is to seek court orders on behalf of its members to conduct software audits on businesses suspected of using pirated or unlicensed software. But even then, the BSA does not seek such court orders frivolously.
"We only proceed on the basis of reliable information," Kruger said. "We take pretty good pains here to make sure our cases are based on solid information before going forward."
Indeed. Despite the tone in the Truce Campaign letters and radio ads to the contrary, the task of proving guilt lies with the BSA.
"The burden's on the BSA to prove itself to the court," said Peter Baruk, director of anti-piracy at Network Associates Inc., in Santa Clara, Calif., and former vice president of piracy for The Software & Information Industry Association, another software advocacy group in Washington that conducts piracy investigations. "If you're contacted by the BSA and doing the right thing, you have nothing to worry about. So, why respond? You can and be a good corporate citizen. [But] there's no reason why you'd have to react to a letter like this."
As someone who provided the BSA with information that lead to legal action and a $250,000 settlement against a former employer, I can tell you first hand that it is not something to be taken lightly. They do periodically run these "grace periods" to give companies a chance to police themselves. But if you get a letter addressed to your company specifically that doesn't refer to a grace period, chances are they have inside information about your licensing situation. The BSA does enforce copyright law for software companies and maintains an army of lawyers to investigate and litigate allegations of software piracy.
It is not worth an intelligent man's time to be in the majority. By definition, there are already enough people to do th
We've had dealings with these guys before. On talking to our lawyer, apparently the BSA (at least here in Australia) can obtain the equivalent of a search-warrant. They need to have reasonable proof to get one - hence the ex-employee-ratting-out tatic. They require an insider that has a reasonable chance of having knowledge of the target-companies systems. Once they get the court-order, they are allowed to tell everyone at the business to shut down all computers until they are cleared with the BSA. So while the letters are designed to scare businesses into admitting their culpability, your chances of actually being audited are pretty small.
BSA targets particular cities and/or business types and sends out blanket letters to companies that meet the requirements. You can get a list of targeted cities on BSA's web site:
http://www.bsa.org/usa/events/
Any sales increase in the city immediately after mailing of the letters gets BSA money. Now the letters don't really have an affect if they can't show they sometimes follow through.
The BSA will then go after certain targets either ones they think are particularly egriegous or they have pretty good proof of violations (the BSA has registration/purchase info from their member organizations plus any public informaion about companies so they can see a company with 1000 employees appears to only own 100 copies of Office -- this may be legit).
So, the BSA will ask for proof of purchase for software from their member organizations (their ability to do this given in the license agreement for most software). Note SERIAL NUMBERS AND CD'S ARE NOT PROOF OF PURCHASE. You MUST HAVE RECEIPTS!
If you refuse they can file an civil copyright infringement lawsuit against you and can ask the court to impound the computers as evidence. They can also ask the prosecuting attny's to bring criminal actions against you.
Details of why the BSA has the law on their side:
http://www.bsa.org/usa/antipiracy/law/
I'd say for a small organization you're probably safe -- unless you had somebody get pissed off at you and reported you to the BSA and raised their awareness of your company from mailing address to red light.
Under current US law the BSA acts legally. If you disagree with this you can choose software that has no such problems (i.e. open source, free software) or you can work to change the law while obeying it or you can start some kind of civil disobedience (just remember -- if you break the law you still have to pay the price for breaking it, even for good intentions. many civil rights fighters ended up in jail to prove their point, if you can't afford the price don't use this method).
I prefer a mix of 1 and 2. I don't think the right to copy other people's software is worth jail time to go the disobedence route.
a few years ago. We went through the process of using their "self-audit tool" (Gasp I think?). As the "new" IT person I got the (nasty) responsibility for assessing the situation and bringing us into compliance. The problem we found wasn't with "commercial" software such as Microsoft, etc.; what we did find was shareware being used/abused. We ended up purchasing licenses for several products (Winzip, CuteFTP, etc) that people "needed" but never bothered to put a requisition in for. Additionally we ended up rolling out Win2k and instituted some control over who could/couldn't install software etc. It was a time consuming process analyzing the data and such as the program listed *EVERYTHING* including all of the standard windows utilities such as the calculator and such. Bottom line was that the odds were probably better that I'd get by lightning than for them to have came in; but it needed to be done and the letter made it a priority with our owners so I can't fault the process.
BSA once sent me a threat letter. The company was legitimate but had only one employee (me), though I used to put 10-15 employees on surveys and convention registrations. Not thinking, I'd disposed of the letter then. If/When I get another one I'm going to tell them to show me something from their attorney and the law and essentially, shove the audit up their ass. Why? I'm 100% Microsoft free. I'm using Linux/MacOS desktops, Wordperfect or OpenOffice for word processing, Apache/Linux for web servers, etc.. I hope other companies do the same.
It violates property laws, search & seizure laws, as well as laws against extortion, to name a few)
Actually, audits neither violate search and seizure laws, nor are they extortion. Your 4th Amendment right only applies when the government is the actor, not a private individual. As to extortion, they are presumably threatening to enforce something in their licensing agreement, therefore not extorting you of anything. And as to property laws, if you let them do it, then you have granted them access to your private property, thus no trespass unless they act outside the authority you allow them. They can tell you that the agreement you signed with them permits inspection at any time, or an audit, but you still have the choice of not allowing them access. I will save the contract issues that would follow for a later time. You are right though.. the odds that this is enforced are 0.
CompUSA pulls the same shit when your walking out of the store, I get pretty irate and being stopped and having my purchases searched at the door, especially when I took only TEN STEPS from the register.
:) Resist this tyrrany before it becomes any more common.
I haven't been to a CompUSA, but Fry's does the same thing. A while back, I saw a post by a person who said he just ignored the receipt-checkers and calmly kept walking out, and they gave him no trouble.
So I tried it at my local Fry's... and I got no hassle.
My advice? Ignore them and just walk out. If they stop you, ask if you are under arrest, and if so on what charge.
Oh, wait, that's offtopic. Ummm...
BSA bad! No biscuit!
*whew* That's better.
With reasonable men I will reason; with humane men I will plead; but to tyrants I will give no quarter. -- William Lloyd
Unfortunately, since this would not be a criminal case but rather a civil case, you might be up the creek and have to defend yourself.
And on what grounds would they file this case? Because they accused you of stealing and you told them to get lost?
Sorry, but filing a civil case still requires some sort of evidence. Even if filed, what are they going to use in court?
Burden of proof *still* lies with the accusor. I can't just go around suing people, and having the court order that people prove their innocence by bringing in evidence -- and neither can the Bullshit^wBusiness Software Alliance.
NGWave - Fast Sound Editor for Windows
my mom got on of these leters a while ago, kind of weird seeing as she is a lettering artist, doesnt even own a computer, nor could see ever even use one :P
Comment removed based on user account deletion
Does BSAA raid premises?
A.Yes, the BSAA can be granted an Anton Piller order which is similar to a search and seizure warrant. If a Vendor has reasonable grounds for believing that illegal software copying is occurring within an organisation and that evidence may be destroyed if notice is given, then the Vendor may apply to the Court for an Anton Piller Order. This is an order which requires persons in charge of the premises to allow the Vendor and representatives of the Vendor to enter company property for the purpose of searching for and seizing illegal copies of software, manuals and other documents which indicate that software theft has occurred.
For obvious reasons, no advance notice is given of when the Vendor's representatives and solicitors arrive at the premises for the purpose of carrying out the search.
Material seized on the search is used as evidence in the proceedings for infringement of copyright.
So it can be perfectly legal when they break down the door. Generally they will have some police with them I believe.
I think Anton Piller was a ship that had stuff on it that was going to flee to avoid civil action and the Court Order to keep it here was used as a basis for actions like the BSAA raids.
People don't get sued for GPL violations. They only get sued for Copyright violations. Once the GPL isn't worth sh*t (sh*t being what it's not worth once you violate it) you have no rights to distribute the associated GPL software that the DMCA doesn't otherwise give you. Once they show that you're distributing binaries of GPLed code, all they have to do is show that you're not making the source code available.
The GPL doesn't give the owner of the software's copyright any rights that they wouldn't otherwise have under copyright law. They simply give the recipient protection from copyright prosecution, as long as (s)he follows certain rules.
OS Software is like love: The best way to make it grow is to give it away.
The classic case was Snap-On Tools. They were clean, and they weren't busted, but they were just about shut down for the audit for longer than they could afford. It cost them into 6 figures.
I'm confused about the burdens of proof here as well, and I suspect that all the cases have been settled by the defense rather than going to trial.
The main thing that confuses me is that I keep reading stories about the Marshalls coming with search warrants while some administrative person runs an investigation. This does not make sense to me, because it is either a criminal matter where the BSA person should not be involved at all (only the police and the attorney general or district attorney will be involved in a warrant search), or it is a civil matter where the search and seizure happens after a hearing, and after the plaintiff has received an order granting specific permission for seizure of assets.
If anyone entered a place of business where I had responsibility, they would be asked to leave at once. The State Police would be called if they did not leave at once. If the person thinks he has some contract with me granting him the right to snoop in my office, he can discuss that with my lawyer or with a judge at a hearing where we will discuss this contract.
Simply having an agreement in your hand does not magically give you the right to trespass or seize property.
Now, if the police are investigating a criminal matter, that is worlds apart from what we've descibed so far. But the standards of evidence collection, the consequences of flawed procedure, and the burdens of proof are also very different in a criminal case. If the complainant does not also happen to be the peace officer who was granted the warrant, laws are being broken if he is the one performing the search. That's enough error to get the case thrown out and the plaintiff arrested or fined.
A trade organization's demands do not trump an individual's constitutional and civil rights. You DO have to submit to signed orders by a court. You DO NOT have to submit to enforcement tactics which circumvent due process of law. Ever.
Every time you give in to thugs, you diminish MY rights.
-fb Everything not expressly forbidden is now mandatory.
>They came back in an hour with US Marshalls and
>a warrant.
SO the Marshalls can come in and do whatever the Judge said they can do. The BSA folks still have to wait in the car. At the moment they turned the case over to the State, they are no longer involved, and you don't have to let them in your building or speak to them ever again until you're in a court room.
These people do you a favor when they pull the pin on the legal hand grenade, because from that moment, your rights and responsibilities are very clear. Nothing else happens without a hearing.
-fb Everything not expressly forbidden is now mandatory.
WISCONSIN COMPANY PAYS SOFTWARE WATCHDOG $150,000
We shall need a nice BMW with a minority driver, innocent of any crime or criminal intent, who happens to draw attention by cruising through, say, a predominantly white upper middle class neighborhood or, alternatively, a predominantly non-white underclass neighborhood. As TV teaches us, he must be up to something.
Said driver has a malfunctioning tail light (grounds for the stop). Said driver is heard to say "Shit" in angry exasperation as the white cop, just like the last white cop before him, approaches the car (grounds for the "reasonable suspicion" of personal or public danger). Thus the cop, now fearful, orders driver out of car and tells him to submit to a frisk. Driver protests, "Hey! Why are you picking on me?" This triggers heightened suspicion in cop who, later, will state in court that the defendant resisted -- grounds for use of physical force in effecting the frisk and arrest, and subsequently for a search incident to arrest that allows the cop to dig widely through concealed areas and containers in the car. Thus far, we have an arrest, a lot of searching, and probable cause hasn't even entered into it. We're getting by quite nicely on the very flexible "reasonable suspicion" standard without any of the bothersome probable cause tests or a search warrant.
Now the the car's impounded, and what happens? The trunk is opened. It's the precinct's policy to inventory everything. And that search -- again, warrantless and without probable cause -- is constitutionally permissible because the cops aren't specifically looking for criminal evidence; oh, no, they're merely impounding and inventorying the vehicle. Bad luck for our driver if he actually had anything illegal in there...
Within recent memory the U.S. enjoyed a brief period of rich protection under the Fourth Amendment, chiefly due to the wisdom of the Warren Court, between the 1960s and early 1980s. Since that time the Rehnquist Court and other conservative benches have seen to it that the police are able to conduct warrantless searches with wider and wider authority, holding variously that the public interest is served by abrogating personal privacy and increasing investigatory protections and abilities. That has been the theory, anyway; the Drug War has been its practice. Today, your actual freedom against unreasonable search and seizure is a function of many factors, not limited to the exception-riddled case law, your skin color, the attitude of the cop who stops you, your ability to afford effective counsel, and the temper of the court.
It is not necessary to produce "Original Certificates" nor "Original CDs". In most cases some sort of proof of payment is all that is necessary.
Under British style common law, a contract is a contract whether verbal or written. There are very few specific examples of contracts that must be evidenced in writing. This does not necessarily mean it has to be in writing, just that there is some documentation (like real estate or mine claim transactions).
If there is any sort of record keeping then your organisation should have cheque stubs, Credit Card statements, etc. If items such as these are good enough for your taxes, they should stand up in any civil action (and hopefully stop it getting that far). However, if you've paid in cash you could be in trouble without receipts.
However, I am not a lawyer, you are probably subject to US law, not British style common law (however similar). I could have missed the point, and this is slashdot.
Q:I was listening to a CD in Grip and it sounded horrible! What's up? A:Perhaps you are listening to country music
The facts are this:
- the BSA has no statutory powers to investigate or so on, but as a representative of various organisations, they can pursue civil action on behalf of their members: there's nothing wrong with this in theory.
- these tactics they are using are a little heavy handed, not dissimiliar to the TV licensing authority approach in the united kingdom, personally I don't like it, and the ethics are questionable, it is a form of heavy handedness.
- you say ' I know that I cannot produce the original CD's and/or documentation for some of the software that we HAVE paid for.' - well, that's your fault really, you should keep better records - try speaking to an accountant about the need to keep records for purchase of assets. No one excuses you for failing to keep proper business records of ownership (why don't you throw away the deeds to your house/property?).
- if you are eventually shown to be in violation of licensing terms, then punitive damages could actually be higher because you've already received a notification about the fact that you may be in violation - you can't claim to have been unknowledgeable.
- software costs money to produce - you might not entirely agree with the licensing terms, but how can you disagree with the need for organisations to try and enforce the terms of their agreements. personally, my life wouldn't have been so good if I had not developed commercial software for which companies were able to license/sell.
There are other forms of proof of purchase. Check with your accounting department. They should still have invoices for anything you purchased in the last 5-7 years.
Most of the BSA's power comes from EULAs which basically legalize compulsory amputation for copyright violation. In the case of an organization running all OSS software, no EULA's have been signed. No contracts have been signed and no agreements with BSA members have been made.
Such a company has vastly more legal options than a typical company that is Microsoft/Adobe all the way. Let's see:
1. Libel/Slander law. After all they have to have probable cause from someone to make that raid.
2. Laws regarding harassment. Their standard techniques are certainly harrassment if you are contractually obligated to permit it.
3. Their audits basically shut you down while they take your machines apart. There's a basis for a monstrous civil suit.
4. A really good lawyer could probably think up some criminal charges to go along with the civil charges you're going to nail them with. Get the local DA involved as well. Some people have mentioned RICO. A case could be made for it by an all OSS company.
With some perserverence their typical scenario could be turned back around on them. Settle with US and we won't break you over a wheel. The non-legal threat of extremely bad publicity for the member company they're acting on behalf of should generate some nice pressure as well. Actually, all of the above also applies to the members who think they're going to get a win for.
I say go for it.
in which he explains that all your software is legally licensed and if the BSA had any evidence against this, they shall sue you. If not, they shall cease sending you letters like this, unless they want to be sued for threatening you.
He installed the software while worknig there, knowing we didn't have licenses, then when he got fired, he called the BSA.
IANAL, but it sounds to me like the company could sue his ass off, and possibly even get criminal charges brought against him.
It also seems to me that, if the comapny is forthright in admitting guilt and ignorance, the BSA may be willing to pursue the network admin instead.
In response to: "Any case law you can point out that supports this? Even if BSA audits you and you cannot show proof of purchase, they still must show that based on the preponderance of the evidence, you did not legally come by it."
It's the software licenses themselves that put the burden of proof on the consumer.
Yes, "innocent until proven guilty" is not applicable to civil suits, but it's a fair analogy. It is the contracts themselves that make anyone using this software "guilty until proven innocent." Other than the misplaced thought about Constitutional rights, I felt the comment was quite insightful and accurate.
TANSTAAFL
Second, if you want them to give you a shitload of freebies, tell them that you're half-way through switching over to linux. Watch how fast a rep comes over and offers you the "latest and greatest".
Third, their "auditing software" only works under Windows. And, of course, if you're stupid enough to allow them access to your machines in the first place, you deserve what you get.
Fourth, insist that, before they connect your computer to your network, tell them that you have to do a virus scan on their machines first. Stick in a linux boot disk, boot off it, the:
- mount their hard drive (the whole thing, not just a partition)
dd if=(whatever garbage you want to write, preferably a BIG file) of=
/dev/mnt/(their partition)
Smile while they try unsuccessfully to rebootLast, but not least, any computers that are owned by employees should be clearly marked as "property of Joe Blow". When the BSA shows up, tell them you don't own any computers, they're all the property of the individual employees, and kindly fuck off, thank you very much.
Remember, you are not required to be polite to anyone attempting to extort money from you. Hell, you're not even required to be polite to the police when they execute a search.
I have been through this entire process... I was hired by a k-12 school when they got an official BSA letter saying they were not compliant and it listed 4 software titles.
I spent endless hours with BSA lawyer and School lawyer, performed a complete audit of all software on their 662 computers (small school) and when it came down to proving ownership..
The BSA would only accept a purchase order to settle. They didn't want licenses, or cd's or original boxes or Eula's.. Show the purchase order and it is approved.
We spent weeks proving that out of the 4 packages they claimed the school did not own- only 7 copies of frontpage were illegal and 4 copies of Corel Office Suite.
So what happened???
According to the settlement-
School had to pay for past sins (meaning pay for illegal copies)-
They had to purchase everything all new and format all the machines (6 were spared in the agreement to actually run the school) (all software legal or not was no longer to be used)
They had to agree to an audit at any time in the next 3 years and if any violations occur- the process starts all over
They had to agree to purchase audit software (they recommended Aperio or Trackit)
They had to fire the current Technology coordinator and assistant and hire new
And finally- they had to pay $138,000 to the BSA
Back to your question- To get the BSA off your back you need purchase orders - but if it goes to court you would have to use Eula's CD's Boxes etc...