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Ask Slashdot: Dealing With the Business Software Alliance?
Kagetsuki writes "We've just gotten a letter from an attorney representing the Business Software Alliance stating someone (we're certain it's a disgruntled former employee) submitted information we are using illegally copied software. The thing is... we're not using illegally copied software. We have licenses for all the commercial software we are using. Still, according to articles on the BSA, that's irrelevant and they'll end up suing us anyway. So we now need a lawyer to deal with their claims and we don't have the money — this will surely be the end of the company into which I've sunk all my savings and three years of my life. Has anybody dealt with the Business Software Alliance before? What action should I take? Is there any sort of financial recourse, or at least a way cover our legal fees?"
Everything I've heard about the BSA is that they employ our now corporate police departments to force audits/etc.
If they don't find shit, they don't have shit.
With that in mind, do your own audit first .
You have licenses for everything? Really? Even the software that wanker down in the mail room installed on his PC? Not yours? Not for work? Wasn't you, was just the employee?
Doesn't matter.
if u do go the "audit" route.....use an independent auditor so it's not "rubber-stamped"
Don't agree to any BSA demands or requests. Find a lawyer experienced with dealing with the BSA.
If you agree to an audit, it's highly probable they will find something illegal, regardless of whether you did anything illegal or not. You need a proof of purchase for every copy of an installed software product. If you use a Windows environment, you need proof that you had sufficient CALs for everything, on effective audit date.
If anything's not in order, or you can't find one proof of purchase for 1 license of XXX, the BSA will insist the software is pirated (even if you bought it good and legal), tack on huge fines, etc
"We've just gotten a letter from an attorney representing the Business Software Alliance stating someone (we're certain it's a disgruntled former employee)"
Be prepared to sue that former employee, for all damages and costs your business incurred as a result of their allegation, If they made a frivolous/false claim that hurt your business, and you can show who it is, take them to court. Maybe they (and others) will think twice, before making false reports to the BSA racket people.
The BSA needs their evidence to sue you, make sure you force the BSA to divulge the identity of the person reporting. Again, you will need legal counsel to help you with this
I would think an audit SHOULD be standard procedure of any BSA filings, especially if it's brought up in criminal court. At the very least, they should hire an external auditor for the investigation that they can use as evidence, or so they can try and settle out of court in the even there was illegal software without their knowledge.
My guess is that if you let them in the door you will be screwed.
Keep in mind that while they like to act as if they are a government / law enforcement agency they are merely a private party that is hoping that people will be impressed enough with their act to hand over enough information to hand themselves.
This is both a question and a point but don't US courts require at least basic evidence before a suit can be brought?
The BSA will be sure to send a lawyer.
You'll need one who has experience in this.
And remember, it isn't just about the audit. You also have to prove (this is civil, not criminal) that all the software you're running is legit. Which means receipts from verifiable vendors.
Just because you have a license key does not mean that you have a "legit" copy (according to the BSA).
We sent an affidavit stating that we had appropriately licensed software, detailed the number of employees, provided ****'d out license numbers, etc.
They then said they wanted to put a laptop on our network to verify all our license numbers. We told them to f@ck off, that we'd provided them more than enough information, and that we'd be happy to speak to the police if they thought a crime had been committed.
We never heard back from them.
Google is your friend, turning up this 2008 advice column.
Abstracted:
- 1. Retain a lawyer, don't go it alone.
- 2. Cooperate—carefully, the BSA's attorneys stay on retainer by maintaining a high recovery rate.
- 3. Don't let the BSA's rhetoric intimidate you.
- 4. Don't rush out and buy any software.
- 5. Preserve evidence with confidentiality.
- 6. Find your allies.
- 7. Create a compliance plan.
- 8. Negotiate non-monetary aspects.
Luke, help me take this mask off
Maybe instead of preemptively shutting down the business he should actually contact an asset protection expert, for advice.
There are ways to structure a business to protect it against dubious legal threats, like the BSA.
A common example would be.... one corporation owning the building.... another corporation owning the computers... etc
You can't just open a new business, move the assets, close your existing one, and evade legal problems. There are many considerations, tax issues, and otherwise.
If you intentionally undercapitalize your existing business, you might be at risk of having a court find you had committed a fraudulent transfer, or they might pierce the corporate veil. Therefore, you should see an attorney about all that as well
While you would think that being reasonable and cordial is the right thing to do, you've given the BSA a letter they can use against you. If they find even one copy of software which you can't find the receipt, they'll use the letter. Get a lawyer first which will advise you of what to do. Remember, the BSA has started out with a threat not a cordial letter themselves. From that stance I would surmise that even if they are wrong, they don't care.
Well, there's spam egg sausage and spam, that's not got much spam in it.
We had a lawyer and had him draft a letter requesting information on what they claimed was illegal. Then we offered to show them the results of an internal audit. We also offered to submit to a third party audit that BSA would have to pay for. After lots of meetings and lots of legal wrangling the BSA went away empty handed. One small difference was we were running non-licensed software and were in violation. It was a web design house with 8 graphic designers and not one legal copy of Photoshop, Illustrator, etc. Since the BSA provided us with the list they claimed was illegal, we scrubbed it from the offending boxes so as to appear legal. Then over the span of the next 2-years we bought all of the licenses needed to cover our butts. This cost over $120,000 in software licenses. Far cheaper than what the BSA wanted. But the lawyer was key. Check with the Bar in your area for a probono lawyer. Perhaps you can find someone willing to work on a sliding scale. Also check with the Small Business Administration for ideas for legal help. Good luck.
Carpe Scrotum - The only way to deal with your competition.
NO! NEVER SAY ANYTHING YOU HAVEN'T RUN THROUGH YOUR OWN ATTORNEY TO AN ATTORNEY ON THE OTHER SIDE. There are so many problems with it. Anything you say can be twisted by them. At a minimum, the "Thank you for bringing this matter to our attention so we can put it to rest," could be construed as an admission that you thought you may have had piracy. Thereby negating any counterclaim and potentially surviving different motions to get rid of it earlier.
Short answer: don't say anything until you get an attorney.
I have yet to see a single company that didn't break software licenses. You might think you don't but that's just not necessarily true. For the day i arraived i pointed out they had unlicensed fonts among other things. But the owners were adamant that thy had never violated a single license, after all they said they live off such things too. Well yes i said do you have a central registry of all your licenses they said no.
As a summary they had about 20,000$ worth of unlicensed stuff in a simple inventory. Mainly because they dint keep track of their licenses, and some of them had expired, by moving on to different licenses etc. Still they were in license violation. So a word of warning, most likely you DO have unlicensed stuff, even stuff you are aware of but didn't think about earlier. So unless you have a central registry of all installed stuff somewhere with pointers to your licensing agreements your most likely screwed anyway, make a deal.
I worked for an engineering company who said they couldnt justify the 25 licenses of autocad civil3d they were pirating (but also said they needed them to maintain the workflow they had) and said that they didnt care about my liability in the matter being the only IT person in the company. I turned them in. The BSA offers a reward, and at first they tell you that if they have to use your testimony they cant give you anything (it would be like paying for testimony) but they tell you that its rare that you ever have to actually use your testimony as the companies generally settle. If it gives you any comfort, the person that turned you in will not get any reward. the BSA find ways to make it so they dont have to pay out the reward for ratting you out. Now as far as your legally obtained software. Scan your PCs for software installed and make sure you have Purchase Records of all software installed that requires a license. this is what any lawyer you hire is going to want. the purchase records are there to prove you had the licenses prior to them coming to you stating that you didnt. the legal group the engineering company I worked for used was Scott and Scott, iirc they are a bit pricey but they will minimize any fines or fees that could hit you from them. I say do your own due diligence first, then see where you stand. just because you didnt authorize the install of software doesnt mean you have not had an employee installing any and everything they could get a serial generator for, which on your machines, means you are responsible for it. Oh also dont go formatting and reinstalling the OS on all of your machines. this looks bad if it goes to court like you were trying to hide something according to the lawyers at scott and scott. I regret doing this to the engineering company myself, but in the end, they are better off for it. Autodesk gave them a huge break on network licenses for their CAD software, and they are now operating 100% legit on the software side for less in fines than it would have cost to buy the stuff out right.
you have a business and no lawyer?
Hire a lawyer. don't screw yourself further.
If you are confident that you have all invoices and reciepts for the BSA member software you are using, Get a lawyer who can verify that you have the proper licensing and can draft a response. If you can't afford this, you are out of business.
If you don't respond, they may get a court order and seize your stuff to investigate, then you are out of business anyway.
Even If you close up shop they will still come after you. this will probably cost you more money than a lawyer.
Who run Barter Town?
What a cowardly waste of money. A lawyer's reply denying wrongdoing, promising counter-suit for false allegations and expenses incurred thereof, is the way to go.
Find some dirt on the BSA and chase them with it. You already have a false accusation letter which will cost you money to deal with maybe you could hound them for those costs until you find something bigger to take them on with. And remember, discovery is your friend, use it on anything and everything, it'll make them squirm.
"Welcome to our world. We are the wasted youth. And we are the future too." Yes, I know these are stupid lyrics.
They have a lot of experience dealing with this sort of scam and might be cheaper and more reliable.
Since no BSA case has ever gone to court how can you know if the judge will be as anal about receipts as the BSA's lawyers?
You're not presumed innocent in a civil case, but you're not presumed guilty either ...
He says it's a former employee, so what are you suggesting when you're saying "deal with the whistleblower"? You obviously can't fire him. What else can you do? Kill him?
Pretty good is actually pretty bad.
Shit, boys, I think they got to this one!
+1 IDisagreeSoHeMustBeATrollOrAnAstroturferOrAShill
No way to protect yourself from having to pay the lawyers though it seems ...
Ok, you must have a profitable company if the BSA is actually coming at you. I know because a former employer of mine was using tons of unlicensed software despite the advice of both myself and the company controller warning him that it wasn't right. So I dropped the dime to the BSA. Know what they told me? The company wasn't healthy enough financially to bother going after. So start hiding assets.
We've just gotten a letter from an attorney representing the Business Software Alliance stating someone (we're certain it's a disgruntled former employee) submitted information we are using illegally copied software.
Reply to the letter like this:
We are in receipt of your correspondence reference ____ dated _____. Could you please advise details of the claim. What software is claimed to be in breach?
Send the reply by registered mail and then do nothing more until you receive a reply.
Engage a lawyer who is experienced with the BSA.
He says it's a former employee, so what are you suggesting when you're saying "deal with the whistleblower"? You obviously can't fire him. What else can you do? Kill him?
Well, if the statements aren't true, he can sue the former employee for everything he's worth.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
As soon as you are done with your BSA nightmare, I advise you to stop using proprietary software. If Ernie Ball can do it, so can you.
if they want to come in and look around tell them to GTFO, stand up for yourself and dont let them treat you like a chump and dont let them give you the bum's rush...
they have to show the burden of proof since they are the accuser, do your own auditing of your computers and make sure you have licenses for all commercial software installed on all computers...
Politics is Treachery, Religion is Brainwashing
See? If you'd been running Linux and all gpl'ed software, you'd have the absolute JOY of telling BSA to go take a flying leap at a rolling donut.. or other phrases I'm thinking but rather not say on a PG site.. As long as you're sure you have no BSA-repped commercial s/w on any machine, DARE them to come in for an audit.. Then when they find nothing sue them for harrasment. (and let the air out the tires of the audit teams tires)
THANK YOU, Edward Snowden!! Americans owe you a debt of gratitude (whether they know it or not..)
No, do not do this. Do not have any contact with them that's not through a lawyer. This is very important if it should ever go to court. And yes, BSA hates going to court. That's exactly why you should do it this way. Document the hell out of everything.
Have a lawyer draft a letter saying you're in compliance, have them send it, registered mail, to the BSA. This should not coast more than $150 or so.
There is a 90% chance that the BSA will back off when you do this. They will see you aren't a pushover. If they ever show up at your door without a subpoena, ask them to leave. Then call the cops.
The BSA is an extortion racket, which routinely threatens people/companies in order to shake them down for cash. (I've received my own letter, even though I've used free/ open-source software for decades and am in full compliance with the relevant licenses.) Make sure you're in compliance and can prove it -- to a court, not to the BSA. Do not respond to them. If they're actually serious about suing you, then let them do it...because they will have to prove their claims in court...which means that they'll have to state their claims...which means that they'll have to reveal where their information is coming from. Then countersue them AND the ex-employee. You should also blacklist their domain so that they can't send your email -- after all, you're require to provide them with email acceptance service unless they have a valid contract for that service (with you). Make sure you blacklist it outbound as well so that nobody can accidentally send them anything. In other words: force them to put up or shut up, and force them to do it court. My guess is that like most bullies and cowards, they won't press it.
Why on earth would you ever invite anyone in to do something that has absolutely no benefit to you?
The OP says he doesn't have money for a lawyer. I say it's time to find some.
Pull my finger for my public key.
Posting near the top to state the bleeding obvious- 99% of Slashdotters are IANALs and many will offer advice that sounds sensible to them, but may turn out to be woefully misguided and possibly have unintended consequences and land you in hot water (e.g. advice like this). This is because the legal system does not always actually work like geeks think it does (regardless of whether it *should* work that way).
Bottom line- unless the person is a lawyer, or has actual experience of having gone through this (and the consequences that ensued), you should not be taking their advice. And as I said in the post linked above, the problem is sorting out the ones who *actually* know what they're talking about from the armchair lawyers arrogant enough to think that they do.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
+1000 This is the best course to take.
I had a former employer who received a letter from the BSA under exactly the same circumstances. The difference is that we all knew the name of the former employee, and we all knew that the company was in fact, using unlicensed software. But he sent a return letter certified back to the BSA stating that he indeed did legally license all his software. And that was the end of the matter.
The BSA is used to getting disgruntled employees making claims, whether bogus or not. Right now they are fishing. If you bite their bait, they will hook you and reel you in, and fry you up.
Send the letter, say ONLY that you have properly licensed all your software. Then perform an audit yourself in case things progress to the next stage.
who prays for Satan? Who in 18 centuries has had the humanity to pray for the 1 sinner that needed it most? ~Mark Twain
I'm really glad the software shop I'm working with is on Linux. No Windows crap in sight. We could get one of those BSA letters and all have a good laugh.
I feel sorry for anyone that has to deal with the BSA. My condolences, but you should have chosen software without licensing issues. The idea of keeping track of the sales receipts as well as the licenses themselves is ridiculous. What would they do if you paid cash for the licenses? The source of the license does not matter as long as the license itself is not a forgery.
Do not say anything. Tell them to fuck off and don't address in particular or in general anything they alleged.
The *only* time you open your mouth to an agency (public or private) that is investigating you, whether it's the IRS, police, feds, or the BSA, is through a lawyer. That would typically take the form of a *response* to a demand letter.
A consultation and getting a response letter written by a good lawyer may run you circa $1-2k, but if the alternative is getting sued by the BSA or shutting down your company, it may be worth it.
Look again.
These guys may rely on fear and intimidation, but they don't make this shit up. If your former employee dropped the dime on you, he didn't do it so he would go to jail for lying. He did it to screw you over. I would bet he knows something you don't. Hell - he could have put the stuff on there himself. It's time to wipe all your machines and re-audit them. While your waiting for that to get done, you can pretty much tell them to FOAD. Next time give your employees a better severance package.
Still, according to articles on the BSA, that's irrelevant and they'll end up suing us anyway.
First off, do not despair. That's not going to do you any good.
Don't be afraid to tell the lawyer that you don't have any money during your free initial 30 minutes consultation (assuming you're in the US, call your local State bar association for a referral). I'm sure that you'll be able to work something out with him or her.
For now, read the article quoted below. The point of that article is that you can do a lot of this work yourself, but that you should still hire a lawyer to at least "supervise" the self-audit process and act as a go-between.
Now the article doesn't mention it, but if I were you I'd check that any old computer laying around the closet has current valid licenses. Whatever happens, make sure you do not get penalized for super old hardware that you're not even using anymore. Also, start inspecting any computer the disgruntled employee has had access to. You never know what he may have installed on there without your knowledge. It's good to go in this with your eyes wide-open.
And then, try contacting the same types of companies in the same niche industry as yours, chances are that they're not just targeting you -- since they recently increased their volume of enforcement letters. So if you can find others within the same jurisdiction as yours, with a similar predicament, you may be able to band together and pool resources.
http://www.baselinemag.com/c/a/Projects-Management/What-to-Do-When-You-Receive-a-BSA-Audit-Letter/
Let's face it, software asset management (SAM) might be a best practice, but there are still plenty of organizations out there who haven't instituted SAM due to a lack of resources or initiative. If your organization is one of them and the Business Software Alliance (BSA) hasn't come calling yet, there's still time to get your house in order. But once that BSA threat letter hits the mailbox, the ballgame changes.
The BSA is known to be a persistent enforcement agency which rarely grants clemency to organizations once it begins settlement proceedings. The following eight tips are offered by two attorneys who specialize in BSA defense cases; they give advice on what to do once your business receives a letter requesting a BSA audit.
1. Retain a lawyer.
The BSA is an efficient organization when it comes to extracting punitive damages from companies found to be in a non-compliant licensing situation—its experts and lawyers know copyright laws inside and out because that is all that they do. For that reason, Scott recommends seeking legal counsel as soon as an audit request is received from the BSA.
"Whether the attorney is working in-house or outside the firm, don't go it alone," you have an audit," said Rob Scott, partner at Houston-based Scott and Scott. Scott said. "The BSA has very experienced attorneys working for it and this is a very complicated process. It involves not only the legal issues related to copyright law, but also it subsumes with it all of the software licensing rules because the copyright claim that lies underneath the BSA audit matter is related to the software licensing rules."
2. Cooperate—carefully.
As much as a business person would love to screw up their eyes and wish the BSA away, the trouble will only multiply through inaction. Though the BSA is not a law enforcement agency it is acting on the behalf of the software companies and it will take matters to civil court if a business does not cooperate with the self-audit process and settlement negotiations.
"When you get a letter from the BSA do not throw it away," said Steve Helland, partner at the Minneapolis-based law firm of Fredrikson and Byron. "That is a serious tip, because some people think that 'Oh if I ignore this it will just go away, but the cases where the BSA is most likely to file in court are where they think there has been infringement and they don't get any response
I understand that this is like the RIAA where the money only flows in one direction. And don't worry, that is not towards you.
Seven puppies were harmed during the making of this post.
Refer them to the reply given in Arkell v. Pressdram
C-x C-s C-x k
"We believe that you are in receipt of maliciously false statements about our firm. We read your letter (dated July 20) as indicating that you have fallen victim to false statements made about us, by some party who may intend to enlist your organization in wrongdoing against our firm.
"We expect, believe, and trust that you will not collude in such wrongdoing.
"As a gesture of your own good faith in the matter, we must insist that you forward to us all such statements or claims that you may have received regarding our firm, which may have motivated your letter of July 20. We expect to pursue civil and criminal action for libel against the parties responsible for disseminating such maliciously false claims.
"Should you decline to cooperate in this matter by forwarding to us the libelous statements in your possession, we may pursue the matter further to secure the evidence. You are hereby cautioned to retain any such evidence and not to destroy or discard it, as destroying or withholding this evidence from lawful investigation may constitute willful obstruction of justice."
(IANAL)
Tell them to go to hell and prove it in front of a judge and get a warrant. Don't let them in just beacuse they want to. Take your documentation for licenses and installs to court and show it to the judge. "we did an audit, this is what we use and we are licensed for these copies"
Also assume this "disgruntled ex-employee" planted something somewhere, so do another audit NOW.
---- Booth was a patriot ----
First order of business, pull up information on the lawyer that initiated contact with you to determine how much experience they have at the firm. If you're a small company they may have someone with limited experience, say three years, and if so, argue as much as possible and you may distract them from one of my other points.
Secondly, forget anything you believe to be true about software licensing and forget about license agreements included with software. What Microsoft, Autodesk, Adobe, etc. licensing department tell you on the phone and what they state in their licensing terms is not true and will not hold up legally unless you have more money than the fines to afford lawyers to fight the big guns. It's not a legitimate license unless you have a receipt. This is important, I repeat, you do not have a legitimate license unless you have a receipt for it. It doesn't matter if it's past 7 years, you have product keys on the side of your chassis, or you have discs; you must have it on the receipt.
Thirdly, do not provide information unless you're specifically asked for it. Read what they've requested, interpret it as literally as possible and if that allows you to include some information and not include other information. This point may not seem relevant to you and I'm not going to get into detail, but I want you to consider this point for at least an hour as the outcome may have a huge monetary difference.
Fourth, you can't buy stuff now and attempt to pass it off as something you'd purchased before they served you. Don't even consider back-buying software you didn't own before. Date of receipt ties into point number two.
Fifth, consider how they obtained this information and how much the person who provided it really knows. I won't give you advice on what to do with the software this person may not be aware of but I'd ensure your file servers are Linux and if you've ever made a transition from Windows to Linux, hopefully it was a transparent process to the users.
I won't get into details over our case as it cost us a tremendous amount of money, five figures, and at the same time, they may have missed a lot of stuff (the site is certainly fully legal now). If you have any other questions, feel free to fire them off and I'll try to answer as well as possible. The best advice I can give you is to consider this a logic problem.
We had this happen all the time. We just entered into an audit agreement. They gave us software to scan our systems, we ran it in a GPO script. Voila. It spits back a report of how many instances there are.
I know a company that had this happen back in the 1990s. It went like this: the BSA asked for a meeting and said company directors needed to be present in case they needed to issue legal documents. Before the meeting, everyone runs around like headless chicken auditing systems, finding license documents, wiping unlicensed software Etc. On the day of the meeting, directors are crapping themselves, but the BSA are all smiles. They say something like "I'm sure you've got some unlicensed software, everyone does, it's normal. But what we want to do is to help people become compliant; not prosecute. So we'd recommend you sign up to this plan for £xxxx per year...". The directors bite their hand off, and BSA go away with some cash in their pocket. It's only later that everyone realises they've been shaken down.
In order to pass the BSA's version of an audit, you don't just need receipts. You need receipts that:
1. Show retail purchases. In spite of the fact that it is perfectly legal to sell and purchase used software, the BSA pretends it's not. If you have a not-retail receipt, it's worthless.
2. Show a date prior to the first contact from the BSA. If you have an un-dated receipt, it is worthless.
3. Show the title of each piece of software purchased, on its own line item (quantities of identical titles are fine), with a line item price. You likely can't provide this for the copy of Windows that came with your PC.
4. Show the name of the company being audited. Did one of your employee's buy it and get reimbursed? Worthless. Do you have company cards that show employee names? Worthless. Did the retailer not print the billing information on the receipt? Worthless. Was is purchased by a company you bought or merged with? Worthless
If you're incensed enough by now to invite the auditor's in, knock them on the head and bury them in the hill, good for you. But you'll likely want to pursue a more subtle response. An attorney is absolutely necessary, if for no other reason than that the lack of one will make you look like easy pickings. Winning this game is about paperwork, stalling, bluffing and bargaining. Once you retain an attorney, their advice will probably be to not respond outwardly until forced to. The BSA doesn't necessarily follow up on every nastygram they send. Responding when you don't have to is acting like a mark.
If the process does progress, remember at all times that what you are involved in, more than anything else, is a long, drawn-out negotiation. The BSA is out to scare people and fund itself. You want them to believe that you are worth very little and come with a big price tag attached. Everything is negotiable, every decision is mercenary.
So, basically, we are back to the times where people have to hire "goons" and/or "mercenaries" again to protect their "villages" from the "bandits", only these days they wear ties instead of rusty armour.
I agree with the above, but I would go further.
Ask that they state which software package is being used without proper licensing and on which machines so that you may properly investigate it yourself.
If the police come to your door and say, "I know you are breaking the law because of an unnamed snitch, please allow me to look around to see what I can find to use against you...and by the way, I get a commission from convictions." Would you allow them in?
Fight Spammers!
The title of my post was cut off but it reads, "We lost (& kind of won)." That bit in parenthesis is important when considering the above post. We lost five figures... but could have easily lost six.
I'd pursue some form of extralegal remediation against that disgruntled former employee. And then follow it up with the same against the BSA lawyers. If the legal system doesn't protect the little guy, then nobody should be surprised when the little guy takes care of business without it.
I'm sure threatening to have the BSA's arms ripped out of their sockets because they're winning will go over great when they take you to court, Chewie.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
No, this isn't legally gray. You're describing an attempt to shield assets in a way that is completely illegal ("fraudulent transfer" is the legal term). You can't possibly imagine that this would work for more than a week, can you?
Get legal help, now. The BSA will need to demonstrate that there is a real question about whether your software is "illegal" or not. If you have reasonable records, a judge can (can't promise that, though) grant a motion for summary judgment in your favor, dismissing the lawsuit.
Make it go to trial, and seek punitive damages if you can either from the former employee or the BSA for filing a frivolous lawsuit.
-- Anonymous coward (almost a lawyer)
Have a lawyer draft a letter saying you're in compliance, have them send it, registered mail, to the BSA. This should not coast more than $150 or so.
Don't take that $150 as a hard rule--rates vary by firm, attorney, location, etc...
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
If you don't have actual hard receipts, purchase orders from your vendor and records from accounting that you paid the bills will normally suffice as a audit trail.
---- Booth was a patriot ----
... To deal with the BSA: it's the way of the knife. Alternatively, get a picture of their kids playing, superimpose a targeting reticle on their heads and anonymously e-mail them their personnel. Works like charm.
Geeks are so full of shit that "beating the crap out of them" takes a whole new meaning.
Kurt Denke's response to Monster was legendary, and can be found here.
Notice that he doesn't admit, concede, claim or offer anything at all. Just asks for a proper claim to be stated, and makes a few salient observations.
In your position, I'd get a lawyer like Kurt Denke to write my response to the BSA.
My suggesting is to never, ever directly deal with an opposing lawyer. You will loose, every time. Lawyers are expert wordsmiths and that is how they fight. You are not and you will loose. Never even send a letter. Not just for this, but for anything. Always have your own lawyer do it for you. You fight a lawyer with a lawyer. Even just the initial response is worth the 150 to 200 it will cost. The initial letter will probably something like a denial and demand for proof. They will probably drop it unless they already have something to go on.
This is about proving that you have purchased the license to run the software that the EULA applies to from a vendor who was licensed to sell it.
And the BSA already has someone saying that you have not.
If you have not purchased that license, then whether you are compliant with the EULA is immaterial. It is "pirated".
If you cannot demonstrate that you have purchased that license, when someone else is willing to claim that you have not, then you will probably lose in court.
Once you have demonstrated that you have legitimately purchased the license through a verifiable vendor, THEN the EULA comes into play. You can be in violation of the EULA even if you purchased the license (and can prove it).
It is complicated which is why you need a lawyer who has experience in this.
(IANAL, but an ex-paralegal.)
Better:
Dear BSA Attorney,
Thank you for your note of the 29th. We've reviewed software use at OurCompany and we have found no unlicensed nor unlawfully copied software.
We ask you:
Who has made these allegations against us? What precisely was alleged? Was there any ostensible evidence proffered to support these allegations?
We hope that our review has put these unfounded allegations to rest, and look forward to your reply,
You
If they want an audit, the reply to the request should note that you have privileged and proprietary information on your machines, that supervising the audit to ensure the security of this information and compensating for interference with and interruption of the operation of your computer systems will result in damages to your business, and while you are neither agreeing to nor refusing a software audit at this time, in discharging your obligations to your shareholders [and/or partners, investors, employees, etc. as appropriate] you would need non-disclosure agreements protecting your proprietary and privileged information, scrutiny of the backgrounds and prior approval of any proposed auditors, an agreement as to the limited scope, methods and purposes of the audit, a prior agreement as to the standards and consequences of such an audit, advance compensation for legal and other fees associated with the negotiation of their proposal and its implementation, and arrangements for specified compensation for any potential harm that might occur to your business, with acceptable performance bonds posted to ensure prompt compensation for any such harm. Further, you should request the full text and specifically applicable sections of any alleged potential contractual agreements which they believe may grant them any rights or impose any obligations to them by your company, with a notification of estoppel for any contractual claims of which they have not notified you, and reserving the right to dispute under estoppel, fraud or other theories any putative contractual claims made by them founded on the basis of alleged contracts to which both your company and the BSA are not both parties, putative contracts which were not signed, putative contracts which were not witnessed, putative contracts which were not sealed, putative contracts without demonstration of valid consideration, putative contracts in violation of law or public policy, including but not limited to: fraud, unconscionable, immoral, or impossible terms, coercive or misrepresented terms, those violating laws against barratry, maintenance, champerty, tortuous interference, frivolous and vexatious claims and litigation, and strategic lawsuits against public participation as well as any sections of such contracts violating , attempting to violate, or purporting to create a right to violate any of those laws or policies, or abridging, modifying, infringing or attempting or purporting to create a right to abridge, modify, or infringe any contractual rights assumed by law, including but not limited to peaceable enjoyment, warranties, implied terms, fair dealing and any other rights, privileges or legal theories which may be applicable to the case.
(Always use "alleged" or "putative" in connection with any "contract" which you might not want to follow slavishly - do not admit to the validity of any contracts with the BSA!)
"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?" - Patrick Henry
And DOCUMENT it. With the original receipt. And multiple copies of the original receipt.
Stored in different places.
The WORST part of this is that the software vendors are complicit in this. There is no way (outside of a volume license agreement) for you to register a license key with Microsoft so that there is no question that your company purchased it ... on what date ... from what approved vendor.
Microsoft does not track or register non-volume-license license keys. Even though doing so would be MUCH easier for them than the BSA bullshit is for their customers.
Get a lawyer first
You missed the part about not having money...
A consultation will not cost as much as you expect. Gather up all your licenses, receipts, and certificates and have him send copies to the BSA along with what is euphemisitically called a "robust" response. You'll probably want to threaten to claim vexatious litigation and assert that you will ask that legal expenses be awarded. Don't let them do an "audit".
And in the future, perhaps you might want to consider not doing business with BSA members. There are alternatives. Just a thought...
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Your boss is Jack Candle? I'm sorry you're working for that litigous assho
If you can't afford a lawyer, one will be appointed for you.
In a civil case with a business as a defendant?
How about reincorporate under a different name, address, etc.? Play hide and seek. Respond to BSA that company is in default, and good luck auditing a company that no longer exists. Incorporation only costs about $50, would be much cheaper than legal representation.
I've worked for a couple companies that were audited by the BSA and what it weird they let both negotiate their way out of the violations. They said we didn't have enough licenses for the number of people using specific software, in end they said buy a few more licenses for this and a few more of these and pay us a small fine and you cool. So they just wanted to bleed us a bit and they moved on.
ignore it. my company did and they couldn't do shit.
Do you honestly think they will give a s**t about that? The BSA is a criminal bully in the traditional style that dates back to the dark ages (google "Danegeld"). If you are guilty and can pay, they will get money, If you are innocent but go bust, you will be an encouragement to future victims.
If you shut down now, they will still go for you.
Get a lawyer.
I'll see your Constitution and raise you a Queen.
I don't happen to find any other post that mentions the elementary fact that unless you signed an agreement somewhere that gives the BSA the right to make an audit, you can just tell them to STFU and GTFO. If you bought everything at retail, for example, Best Buy, Provantage, PC Connection, etc, no such agreement would apply. It's when you buy site licenses or have to sign an agreement to make the purchase that you get roped in.
If there's something in the shrink wrap somewhere, then it gets murky. That's where they can claim that you "agreed" to something you never did, just by opening the package.
So step one is to ask them for their explicit basis of authority in your case.
Are you speaking from experience? That most assuredly did not work for us, nor did credit card statements. The court of law requires an itemized receipt of purchasing, clearly listing the purchase of a software license. A software licensing audit is not the same as a financial audit.
Yes, at least from the standpoint of Microsoft calling us. They had noticed we dropped the MOLP ( i felt it was a waste in or case, for various reasons ) so we sent them a copy of our PO from CDW when i did a 'retail price upgrade' instead and they went away.
---- Booth was a patriot ----
Microsoft called you? The situation the OP is referring to is different, as it's the initiation of legal proceedings by a law firm and the letter he received has a legally binding request with serious implications, set in stone, regardless of how you respond or don't respond.
If they want an audit, blah blah blah which may be applicable to the case.
That "paragraph" consisted of only two sentences, one of 176 words and the other of 235. Only a lawyer can abuse language in that manner. I call bullshit on your claim - you are a lawyer, aren't you?
Ahh - My eye!
The doctor said I'm not supposed to get Slashdot in it!
Seriously, If you cannot afford a lawyer, just wait and see if it goes away. Don't write to them, don't talk to them. As you said, it could be a disgruntled employee, and even they have to be thinking that it is an angry employee or customer. Who else would bother to write such a letter? They also do not know that you are tight for money and can't hire a lawyer to counter-sue, so this is most likely a shakedown to see if they can get any handouts. You don't need to hurry out and get a lawyer until they are actually suing you.
You say "(we're certain it's a disgruntled former employee)" and also, "The thing is... we're not using illegally copied software."
I'd say you almost certainly have illegal software and said disgruntled former employee is probably the one who installed it without your permission.
Did your case actually go to court and the judge told you that, or is that just what the BSA thug lawyers claimed?
Because I find it REALLY hard to believe that a judge would look at an original serial number sticker that says license on it, and say that's not a license.
Just wondering. If someone wanted an easy way to snoop on a business' computer and network, they could send it a letter that purports to be from the BSA, demanding an audit. If the business permits the 'audit' they could be opening themselves to all sorts of mischief. Some of the most egregious intrusions are the result of good social engineering, not great technical skills. As others have said, contact an attorney. Just having them send a reply could put the matter to rest and cost less than you think.
All attempt to bully you into complying with their illegal claims. Refuse to be bullied, and that may require hiring a lawyer to defend yourself and/or countersue.
make imaginary.friends COUNT=100 VISIBLE=false
For years I was the poor schmuck who took on software licensing compliance for our company of around 10,000 computers. Since I know from sad experience you can never have enough paperwork to be proper butt-armor I put in a rather simple way of tracking our licenses.
Each and every paper license was identified with the purchasing department and the purchase order number. And every order was linked to a computer, which also had a purchase order number. So in essence everything we bought could be tracked back to the purchasing department and then if needed back to the vendor for copies of the actual invoice, etc.
It was horrible, time-consuming work. Especially since I was doing this in my "spare time" as it wasn't my primary job. Eventually they gave me someone to help with the drudge work. And finally they gave the whole thing to a manager no one could stand and no one would work for any more. They were so grateful for me setting up a turn-key process that they didn't even feel that they needed to mention it in the email to the division about the new manager. No, I'm not bitter.
And as a lighter note on ending I did send an initial contact from Microsoft's legal area running. They said we were underlicensed for Outlook and would require us to provide all kinds of information to prove we weren't. I politely answered that we used Lotus Notes; only two divisions used Outlook and we were migrating them; we actually did buy Outlook with every copy of Office; and we were probably overlicensed if anything and how we could get a refund for the extra licenses. Then I told them to come back when they could identify which of our 15 affiliates they believed to be out of compliance. Never heard from them again.
It is human garbage like you that give IT guys a bad reputation.
The guy did the correct thing, even if you don't like it. If the company was making money using the software, the least they can do is legally purchase the software.
Most of the time you hear about some disgruntled employee installing software all over the place before leaving the company and then calling the BSA. But this guy was supposed to be responsible for the IT department and 100% legally liable for the more than blunt violation of copyright. If he just walked out, the company would had blamed him for the illegal software and laugh while he is screwed.
Also, file a criminal complaint against them for extortion.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
First off, I am not a lawyer.... but the best option is to ignore them and hope that they go away. The BSA sends out scary letters all the time, but what can they really do? Send another even scarier letter? Don't talk to them, hang up when they call, and file their letters in a folder.
:)
:)
Here is how it works on the BSA side. A disgruntled employee contacts the BSA and makes the claim that a entity is using pirated software. They typically talk to the whisteblower multiple times on the phone and ask lots and lots of questions over and over before sending out the scary letter. They always run the risk that the person could be lying, crazy, or disgruntled.
In phase II, they get more legal and more specific and depose the informant and create a sworn statement. They put the informants claims in legalese and make them swear that it is true and sign it. After this happens, you will get scary letter two or three. Often times, the informant isn't disgruntled enough to perjure themselves and risk a countersuit from you company for monetary damages. The BSA will not go further without this because they don't want to be liable in a counter suit for civil damages. They need to show that they are acting in good faith that software piracy is occurring, without a specific sworn statement it amounts to hearsay. They pay a cash reward for information and they make the information work hard for the money they are never going to collect.
If you open the door and say, "Come on in and audit us, we've got nothing to hide." you are building a case against yourself. Even if you are legal, you're not since whatever proof you think you have will not be enough to appease them. In my opinion, the only way they can come in is if you let them in or a judge orders the audit as part of a discovery in a lawsuit. Apparently the EULA you clicked "I agree" to on install allows for auditing anytime, but no one has ever tested this legal theory. Meanwhile, do your own audit and make sure you are clean. Make it as difficult as possible on them and hope they go away. Then quit being such a jerk to your employees so they quite calling the BSA or switch to Open Source.
Watch this video for more details: The Bully Software Alliance
I love those sorts of licenses. Be sure to invite them in to discuss the matter. Right after posting a sign in your lobby that by entering the premises they consent to a strip search and body cavity search. With a splintered 2x4. Said sign should only be visible once they've actually entered the premises.
That's one nonsense legal concept that needs to go away NOW. I agree to something by AGREEING to it. Not by tearing plastic. Not by walking into your store. Not by browsing to your web site. It's called informed consent and should apply EVERYWHERE, and NEVER after the fact.
There's a lot of anti-BSA whargarbl going on in this thread.
Try to remember that whilst the BSA have over-reached their mandate at times, they are fundamentally not the bad guy. Regardless of whether you agree with software licensing concepts, it is currently the way that our law works - and the BSA are the group that take civil action to uphold that law.
I don't know anything about your business except that it is quite young, and that it is quite small. It is time for you to start treating your business like a business. Every asset held by your business should be in a register. That register should cross reference the purchasing proof, and any subsequent maintenance expenses associated with the purchase. This extends way beyond mere software purchases. It should also cover off all your hardware, and even your office furniture.
Now, you might be thinking 'That sounds like a whole lot of hard work.' It is. Welcome to the business world. If you ever intend to sell your business, either privately or via an IPO, you will need these kinds of things. The good news is that the devil is in the setup. Once you have this register, it is easy to keep it up to date. You simply add another line every time you purchase an asset, or spend money on it. The even better news is that you can reverse engineer the asset register from your known purchases.
When the BSA come a-knocking, you simply hand them your asset register, and tell them that you are willing to participate in any audit they wish to undertake, as long as they fund it. It would also help if you can hand them the employment contract that all new staff signed when they joined. You know the one... it has the clause about them being personally liable for any civil or criminal case resulting from their actions. If you don't have that contract in place now, time to start.
Oh... and one last thing. You might be thinking about going through your workstations, servers and backups and deleting every illegal piece of software you can find. Not only is this a really good idea right now, it should be standard practice for your business. You should do this exact activity regularly.
Good luck with it. You may face some tough times in the immediate future, but you will come out the other end with a clean nose, and a much more professional business model than before.
Just forget about it. These guys have the courts and judges on their sides. They make up their own bullshit rules and they get them to stick. Shut down the company, sell the assets, pay the debts, and distribute anything which remains to the shareholders. When the BSA comes they can find an empty office (or maybe a nail salon).
Well, this is sort of true. Courts can award them injunctions that warrant them the right to collect data from the premises as part of the discovery process. In this respect, they are still a private entity, but they have the backing of the court and generally a US marshal with them. Oh and they will be in possession of a court order at the same time.
Stop treating employees like shit. For an ex-employee to goto this trouble. You had to have done something to deserve it.
Not really. Asshole employees are fired regularly, and the BSA has commercials running saying things like "just fired? Report your ex employer and earn a reward!"
I'm not a lawyer, so maybe someone can explain this to me. On behalf of whom is the BSA bringing this complaint? For instance, I know that the U.S. government, in a move I disagree with, has given some environmentalist groups like the Sierra Club permission to file suits against individuals on behalf of "The people" giving them legal standing to bring a claim against any defendant in the U.S. without having to prove the defendant harmed the Sierra Club.
The reason this is important, and I'm not a lawyer so I probably need clarification, is that you cannot sue someone for a grievance that has not harmed you. You have to show that you are either "the people", an injured party, or represent somehow an injured party. Since the BSA doesn't sell software and cannot possibly be harmed by the illegal sale of something it does not sell how does the BSA even have legal standing? (if that's even the correct phrase)
Has anyone been arrested by the BSA? no. They aren't the government. Does anyone know if any of their shenanigans ever made it to court? I wouldn't turn my network over without a warrant to the government, I sure as hell won't to some "Alliance" who has no authority to compel me to do anything. ....
Of course, my business runs on Linux and our desktops come with windows licenses from the factory. We were accused by them of pirating office software. We met with them offsite, I showed them our desktop software manifest, which states the following :
OpenOffice vX.X
Firefox vX.X
end of statement
and asked them who we needed to pay for freely available software.
they walked slowly away....apparently our disgruntled jackass former co-worker didn't know that openoffice was free and assumed it was an pirated software since we said to her "we don't need a licence, just installed it"......
~corporate tool, but employed~
people who make $100,000 / year and refuse to pay a $7,000 autocad license are not 'suffering'. they are arrogant thieves.
if you took any other trade, say, a machinist who took a $7000 lathe from a hardware store without asking, they would be in prison for years and years and years. if a welder took a welder from home depot, theyd be in jail for a long time.
why does this upset me so? because if these people would fund free software, and bother to learn how to use free software, instead of ripping off Autocad because 'its what i learned in school', then we probably wouldnt need autocad.
No way to protect yourself from having to pay the lawyers though it seems ...
Quite right... I am afraid so. You can no more do business responsibly without lawyers than you can do without accountants and clerical workers or other consultants you require in the course of your business. And people with the level of training and expertise lawyers have tend to be expensive.
the only real question then... is the amount of protection you get worth the lawyers?
If you have a large business, probably, more of your cash is at risk if sued, if you're likely to lose, and you don't have protection.
Another strategy would be to spend all the money on your legal defense fund and hope to win.
But if you run out of money, and therefore, will probably lose the lawsuit due to lack of defense funding, or poor case, maybe it's a good idea to have the protection in place to fall back on.
It's very likely that the software licenses they bought actually require them to submit to BSA audits on request. I'll also bet they had no idea what they were agreeing to when they purchased them, or what a time-bomb they could become should their record-keeping be less than impeccable.
So, everybody run along and dredge up your proprietary software licenses and EULAs, and find out what you've agreed to. Sweet dreams!
if we had more snitchers in industry, especially in the IT and math crowd in the world of finance and insurance, then we would not be in the Great Recession right now.
we would not be facing 9 percent unemployment (real unemployment rate is an untold amount higher), we would not be facing a european debt crisis that threatens to destroy the Euro, the United States debt crisis which is threatening the notion of what "full faith and credit" of the US government means for the first time since the civil war, and on and on and on.
We wouldnt have hundreds of thousands of vacant homes, we wouldn't have had teachers and firefighters pension funds ripped off, we probably wouldn't have had the 2008 food crisis and subsequent starvation and riots, etc etc etc.
If we had had more snitchers, none of this would have happened. AIG would have been shut down circa 2006, Fannie Mae and Freddie Mac would have been reigned in and eliminated years before 2008, Bear Stearns, Lehman, etc, would have been wound down in an orderly fashion instead of at the last minute, breaking the buck of the money market funds and causing the world wide shit storm that Lehman did, and on and on and on.
But no. Some people believe that 'snitching is wrong'. Even when the people above you are committing horrific crimes every day, crimes that hurt people, crimes that emperil the entire world economy. But no. 'snitching would be wrong'.
if someone at NASA and Thiokol had 'snitched' on their management to the media, then the Challenger would never have gone up in cold weather, the o-rings wouldn't have failed, the gas wouldn't have erupted into the main tank, the tank wouldn't have ruptured, and 7 people would be alive.
but hey. i guess 'not snitching' is more important than the lives of seven people.
glad you have your principles in the right place.
strangers on slashdot. god forbid anyone cross the 'thin pasty line' and point out that their bosses and colleagues are committing financial fraud on a massive scale (meanwhile, teenagers who steal candybars are put in jail alongside rapists and murderers)
nah. close your eyes. pretend your only duty is to your 'bros', and go watch another copy of 'goodfellas' or whatever fucked up world view you use to justify your own corrupt, soulless existence.
I have a friend who was being discriminated against (he filed lawsuit - they did *VERY* stupid and illegal things to him). He went to BSA and complained that the company was pirating software (the director of *SECURITY* wrote in an email that everyone was to install their copy of Microsoft Office from their MSDN CD!!)
BSA looked at the company - Fortune 100 - and said, nope, don't see a problem here. CYA.
There is no presumption of guilt or innocence in a civil case but how the parties conduct themselves initially may foreshadow how they will act. The BSA has started out with a threat. I have little expectation that such an organization will ever be reasonable afterwards. It would not be beneath such an organization to twist any letter you send them into an admission of wrongdoing or drag the case out for years for absolutely no reason based on a single letter. That's why you should talk to a lawyer first and figure out some way to pay for him/her.
Well, there's spam egg sausage and spam, that's not got much spam in it.
I didn't miss but that's rather irrelevant. Find a way to get one whether you have to do so in barter or borrow money from a friend/family. Frankly at this point, the poster is going to have to pay to get out of this situation; the goal is to limit the expenses only to his lawyers retainer instead of massive judgment against him.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Arguably, it's better to have a 90% chance of financial ruin foregoing the lawyer than a 100% chance of ruin from the lawyer.
That doesn't mean he shouldn't see what sort of bargain he might strike, but the sad fact is, some people CAN NOT afford justice and a bunch of people unhelpfully suggesting they just buy them some justice won't change that. You might as well suggest that he eat cake. The sooner people quit giving that useless advice and start getting incensed about it, the sooner it can be fixed.
..The BSA is a criminal bully in the traditional style that dates back to the dark ages (google "Danegeld")
The little nuggets of information dropped by knowledgeable slashdotters never cease to amaze me; the wiki article for Danegeld was fascinating, thanks. It serves to remind me of the rich European history I'd rather have learnt in school than the minutae of trivia I was forced to ingest instead.
..Mullah or Pope, Preacher or Poet, who was it wrote: "Give any one species too much rope and they'll fuck it up"?
Get your paperwork in order, ask your employees to remove any "stray software" they may have personally installed, and do your best to convince yourself that the "disaster scenarios" you've heard are a combination of carefully crafted BSA public relations and the simple fact that "what bleeds, leads." Cases that go nowhere are, above all, uninteresting — if nine out of ten cases were marked at random to get no attention whatsoever beyond the first "nasty letter," you'd still hear virtually nothing about any case other than those of the "tenth men."
If what you say about "not being able to afford a lawyer" is true, you can scarcely afford a settlement that, additionally, covers BSA's own legal fees, let alone "profit." So it's quite possible that a simple, curt response on a lawyer's letterhead will suffice to quash the matter, for no other reason than that the BSA won't invest significant resources into your case without knowing something about your finances. Rest assured they'll run a credit check before committing significant non-secretarial human resources.
So write a short, confident*, non-threatening letter informing them only that their source is mistaken — then hire an inexpensive lawyer not affiliated with a large firm — a pricey lawyer from a "big name" firm is evidence that you have "something to lose" in a settlement — to revise it, print it, sign it, and send it. This shouldn't cost you more than a billable hour or two.
After that, don't panic! Get back to running your business as usual. You've done all you can, and mulling over "worst-case scenarios" will cause you nothing but grief. If the sky will certainly fall tomorrow, you may as well dance today.
Needless to say, I'm not a lawyer. I have, however, argued successfully against the recommendations of several I've hired, no harm has ever arisen on account of this, and most have subsequently suggested I should consider the profession.
* As much as is possible, avoid weasel phrases like "to the best of my knowledge" at this stage. Since it'll be written in the person of the lawyer, insist he express the confidence of your claim: "according to my client, he has no improperly-licensed software installed..." Your response isn't "under penalty of perjury" even if you were lying, and you certainly won't be thrown under a bus for expressing your honest beliefs with "insufficient linguistic skepticism" in an informal response.
You can't gruntle all the people all the time — especially if your employes have high-value marketable skills you're not yet successful enough to pay for.
The BSA is not a police agency; they have no police powers. Keep that firmly in mind as you send them away.
When they say you're in violation, reply that you respectfully disagree - and say nothing more. They're fishing for something to use against you; just refute their claim simply and shut up.
If they want to audit you, refuse. Don't allow them access to your building or network - even if they show up with uniformed "officers". Do they have a valid search warrant? Of course not - send them away and if they are balky, you can physically eject them; they're trespassers.
For those who say "we're legal, we've got nothing to worry about" - you're fools. Do you really believe you can show purchase receipts on demand for each and every piece of licensed software that is installed or running anywhere on your network? Are you willing to bet your business on this? This is their bread and butter; once you let them in the door you're toast.
Remember - firmly disagree with their allegations once. Refuse any and all entry to your premises or network. They'll move on to easier targets; there's always a ready supply of those "sure, take a look around" fools to keep them busy.
Maybe end your encounter with the BSA (doing whatever your lawyer recommends) by announcing to them, that you are going to help the BSA by working on reducing the amount of software you use old by their members.
Since your company is using commercial software, it probably has a software legal department for such cases anyhow. If not you'll now have to pay the price of not having one. Buying commercial software is not like buying a house, it's a complicated legal procedure.
In the business, we built all our new software on Linux, our server is Linux and I only user Libre Office here at home. The laptop I purchased has Windows (dual boot) on it. That's the only piece of "purchased" Windows software I have. I removed Windows from my netbook and my cell runs Android.
We just ran into a problem importing CSV files using MS Office since there are a couple of die-hards in the company. We had to use Open Office to accomplish the task.
In short, there's not a lot of non-OSS software in our operation and it's getting less and less each day and it's precisely stories like this that made us go this way. Linux has been rock solid for the last 11 years and we are so glad we went in that direction.
Well, this is sort of true. Courts can award them injunctions that warrant them the right to collect data from the premises as part of the discovery process. In this respect, they are still a private entity, but they have the backing of the court and generally a US marshal with them. Oh and they will be in possession of a court order at the same time.
First, they should have no authority to audit for any but their member companies (which are not that many).
Second, I would challenge any search they did. Make them get a warrant signed by an actual judge. Then complain about the Probable Cause all the way! They are NOT a Police Force. That's why they need a Federal Marshal along.
Third, I would challenge that they are not the Real Party In Interest. They lost nothing. If the actual company wants to sue you, fine; but the BSA is NOT properly a "Party". They are a meddling Interloper They are NOT "aggrieved". Get THEM kicked off the suit as having no Standing. They cannot receive a "settlement", because they suffered no damages. Therefore, they have failed to state a claim for which the Court can grant Relief (to them).
This came up on Slashdot years ago. Someone said they sent a letter pointing out that the BSA has no standing.
The BSA is certainly not a legal authority. It's a trade association. In most countries they don't have a right to "fine" you (but presumably they k now this and will call it a "fee")
As a trade association, it's a separate entity from the companies that licensed the software. As such it has no standing to sue. You company has never licensed software from the BSA, agreed to audits from the BSA, or agreed to pay the BSA for any of these costs.
The gist of it was you can tell the BSA to take a hike and demand to speak to the organisations directly regarding alleged infringement.
ok, to your first point, if the court is involved, they have accused you of violating their copyright and the court would certainly have the authority to order the audit and allow them to seize evidence.
For your second point, I do believe that is what I was talking about. If I was somehow not clear, i apologize but at the same time, you should brush up on your reading comprehension skills a bit as I'm almost positive this is what I said.
As for your third point, most appropriately right. That is completely within your right. However, you have to be careful in how you go about it because interfering with the lawful execution of a court order, even if it's to exert the rights you just mentioned, can become a barrel of other charges against you if nt done properly.
However, it seems that the only thing we are in disagreement with here is your understanding of what I said.
However, it seems that the only thing we are in disagreement with here is your understanding of what I said.
Um, I didn't misunderstand anything. A Court can't LEGALLY issue an Order to allow a PRIVATE COMPANY to come into your business and "Audit" or "Sieze" SHIT.
Do you REALLY think that a Court could issue an Order to allow ME to "audit" or "sieze evidence" from YOUR BUSINESS???
Guess what? Neither can the Court issue an Order to allow the BSA to act like LAW ENFORCEMENT, in ANY CAPACITY WHATSOEVER.
If the Congress decided the PEOPLE wanted a "Software Police", it would pass a LAW to create such an entity, and would grant it certain "Police Powers". Until then, you can safely tell the BSA to go pound sand. Congress hasn't empowered them to execute a Search Warrant, and a Court sure as hell can't, either. Oh, and there is simply no such thing as a "Search Warrant" that would allow for SEIZURE of ANYTHING in a CIVIL case.
Remember, simply POSSESSING an "unauthorized copy" is NOT a violation of Copyright law. They have to prove DISTRIBUTION to someone else BY YOU. So "having a Federal Marshall along" is nothing more than a bullshit INTIMIDATION tactic. It's a CIVIL matter, NOT CRIMINAL! The Federal Marshall has ZERO power in that situation.
So, it is not my reading comprehension that needs work. It is your understanding of the difference between a Civil matter and a Criminal one.
Ernie Ball (guitar strings) went through what Kagetsuki is going through.
Free Martian Whores!
I got such a letter. My company is just me sitting in my basement. I have no ex-employees.
I am a full C corp however. I just ignored it and nothing happened. Make them work a little
to find out if you even exist.
The actual letter was on the best quality paper that I have ever seen. Strange!
You see, the BSA is a bit of a scam. They are NOT the police even if they claim to be. IF they go after you and are wrong then you can sue them for costs. ALL costs. If you KNOW you are 100% opensource then that is very easy to proof. For instance, most licensed software doesn't even run on Linux. And judges do NOT like time wasters in their courts.
You should use the software you need but you also need to know the true cost of your production line. The BSA is part of the cost of using software from companies that are part of the BSA and it is a HUGE cost.
Do you know that if you bring a laptop with a license sticker on it into your company it is NOT enough? The license keys are worthless, you need to keep the INVOICE around. And that invoice needs to be tied to specific license keys. If you think, I use 10 windows XP machines and got 20 or so license keys you are NOT in the clear.
The BSA actually requires more proof then the police does off possession.
Buyer beware. And for many a company, Windows is hardly needed anymore. You just need to do it unless you want to get done instead.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
You *really* think some low-level worker snitching would have done anything? Talk about misguided. I, for one, saw the warning signs a long time before things melted down. It wasn't exactly secret... It's just that when high level people are paid to look the other way, well, they do it. It may be wrong, but if those people are corrupt, who exactly are you going to snitch *to*?
On top of that, like I said on a different post: It's one thing to whistleblow for moral reasons, but you had *better* not take any money for it. If you do, you're no better than the person you're turning in.
If your company turned on Terminal Server, chances are they got you. Did you get a MS OFFICE license for each employee? Oh, they work at home? Did you get your WAH or HUP licenses?
http://download.microsoft.com/download/1/7/7/17745e4a-5d31-4de4-a416-07c646336d94/desktop_application_with_windows_server_terminal_services.docx
I really like Terminal Server, I really do. But a company would almost have to have a lawyer on staff that did nothing but try to find out if they were staying legal with their terminal server. Is an on-staff lawyer figured into the TCO for Windows???
Doctors destroy health, lawyers destroy justice, universities destroy knowledge, religion destroys spirituality
or use a program that will actually give you some info on what it does before you sign up for the program
http://belarc.com/
(note belarc Advisor is free for personal use)
Any person using FTFY or editing my postings agrees to a US$50.00 charge
BSA tried to give a former employer of mine that bullshit. Their sources are software updates on Microsoft products. We had a lab with 50 bitch computers spewing malware, worm, spam, tor, crap traffic ad nausium and always used the same CD to rebuild them. Because we had to allow them open, during rebuilds, to the www for updates we got flagged. We had 20 employees and hundreds of copies of everything they accused us of pirating. They actually just showed up insisting on an audit because we originally told them we didn't have the man power to compile a list of all of the copies of the softwares they wanted. The lab had glass doors and a barrel of windowsXP and office was just inside the door. My boss ran his hand through the barrel of software and asked the guy if he wanted to take the barrel to the trash for us. Long story short, after paying a lawyer to send them a massive list of shitware we never used, everything was on Linux and Solaris, and the names of our employees they dropped the suit. When we counter sued them for legal fees, their argument was that we needed to use a different copy for all of our test machines. The real irony. We developed software/dpi signatures to protect windows from exploits.
Short answer, hire a lawyer to send them a list of your shitware and employees. If your in Texas, don't bother counter suing because the gooberment loves them.
Having to work for a living is the root of all evil.
The BSA is, very literally, an extortion racket. Yes, they absolutely and without any question are the bad guys. Their goal is to extort as much money as humanly possible out of everyone they can get their hands on, and use the threat greater legal expenses to prevent people from fighting, even when they are clearly in the right. They do the business equivalent of asking if you want your knee cap broken or a lighter wallet. On top of that, they deal in one of the most horrible and arcane areas of law, copyright and licensing. It is entirely possible in good faith buy software/computers/etc legally, and still have the BSA try and kneecap you if every receipt isn't there or in exactly the right forum.
The BSA is a small business vampire, living to suck the life out of defenseless small businesses. They will always find something, regardless of intent, and then use that to extort money from your business. The BSA is a drag on small businesses across America and basically are robbing EVERYONE when they jack up the cost of operating a small business in the US by forcing everyone to pay protection money to their cute little extortion racket.
There's a lot of anti-BSA whargarbl going on in this thread.
There is a very good reason why there is as a lot of hate on the BSA, and it is because they are the fucking devil.
Arguably, it's better to have a 90% chance of financial ruin foregoing the lawyer than a 100% chance of ruin from the lawyer.
And those are the exact numbers? Maybe it's 100% chance that he'll never hear from the BSA again if he gets a lawyer. Completely making up numbers doesn't help your case.
That doesn't mean he shouldn't see what sort of bargain he might strike,
First, no one says he can't bargain after he gets a lawyer. Bargaining and getting a lawyer are not mutually exclusive. Second, bargaining, again, relies on the presumption that the BSA will be reasonable with him. Again, they started out with a threat. Seriously the history of the BSA is that they don't care that they if they are right or wrong in their accusations. They want money. Getting a lawyer signals to them that whoever they are accusing won't roll over and pay their demands without a fight.
You might as well suggest that he eat cake. The sooner people quit giving that useless advice and start getting incensed about it, the sooner it can be fixed.
What kind of fantasy world do you live in? If you have a potential legal problem, you should get a lawyer. If you have medical problems, you need a doctor. In practicality, he may not able to afford either but that does not take away from the solution is the correct one. He has a separate problem with payment. If he required surgery, would you advise to read about the surgery he needs on the internet and then attempt to perform it himself. That's equally as asinine.
Well, there's spam egg sausage and spam, that's not got much spam in it.
How about changing "prove yourself innocent" to "provide evidence that the disgruntled former employee's testimony is less reliable than your testimony".
EVIDENCE.
The courts are supposed to run on evidence.
The BSA cannot provide any evidence UNTIL they have an audit.
But the CAN provide a WITNESS who has been established as being in a position to directly observe the claimed violation(s).
The other part to remember about this is that the big software houses are COMPLICIT in this charade. This is not (you) against (the BSA).
This is (you) against (the BSA and member companies that have spent years working the legal system to advantage themselves in this area).
If the new company is formed in some foreign country lacking major treaties with the US, this works surprisingly well.
If the new company is older than yours and "bought you out", all the better (so what if it was a garage repair shop for cash registers back then).
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
The question is what kind of fantasy world do YOU live in? Here in reality, no money typically means no service.
As for the bargain, I meant with a lawyer so he can be represented. However, the reality is that he may not be able to strike such a bargain and that for better or worse he will be on his own.
The correct solution is one that can work. When you're on a sinking island without a boat surrounded by sharks, the "correct" solution is to fly to the nearest stable landmass, but only a fool will stand there flapping his arms. The "wrong" answer is to swim as fast as you can to the next island and hope the sharks are lazy, but (by virtue of having even the smallest chance of working) it's better than the "correct" answer.
Of course, the other "wrong" answer is to invite the BSA lawyer over for some coffee and foxglove. Alas, that one can lead to worse than financial ruin, so I don't recommend it.
This is what your company deserves for using proprietary, closed-source software with restrictive licenses. I wish this would help ruin more companies so that more people would hear the story of how disgusting the for-profit software industry really is, and choose to use Free Software.
if I have a legal problem, your advice is I listen to a bunch of people on a forum who have no legal training and ignore the people who say that since it is a legal problem, I should contact a lawyer.
The question is what kind of fantasy world do YOU live in? Here in reality, no money typically means no service.
So you know for a fact the poster cannot sell any assets to pay for a lawyer. Or get a loan from a friend or family member. Or dip into long term savings but at penalty. Or that he won't be able to find a law firm who is willing to do pro bono cases. You seem to know a lot about the poster perhaps you can share his financials so that we can help him figure out how to best pay for one.
The correct solution is one that can work. When you're on a sinking island without a boat surrounded by sharks, the "correct" solution is to fly to the nearest stable landmass, but only a fool will stand there flapping his arms. The "wrong" answer is to swim as fast as you can to the next island and hope the sharks are lazy, but (by virtue of having even the smallest chance of working) it's better than the "correct" answer.
Your analogy is pointless. He's been threatened legally; he should get a lawyer. He should not ignore the letter. Of course your recommendation is that he goes it alone a company with presumably an army of lawyers that can bury him in paperwork for years. I'm sure that is sound advice.
Well, there's spam egg sausage and spam, that's not got much spam in it.
between whistle blowing and between ratting someone out for a profit.
which is perfectly exemplified by the vitriolic diatribe of verbal abuse poured out by the above poster responding to the original poster.
and you have to eat and buy clothes , so if someone pays you for lost wages, whats the problem?
thomas drake blew the whistle - he lost everything he owned, except his house. he went from 150k/year to an hourly apple store worker - what do they make, 20k a year? 30k?
what is the problem with some organization paying him for what he did?
This has all been discussed recently in the Righthaven cases, where they were found to not actually have the right to enforce the copyrights they were suing for. As you recall they were essentially "outsourced copyright holders for the purpose of litigation."
The judge dismissed them, they went back and got a better contract with the copyright holder. We'll have to see what happens now.
After all this we may know to what extent and under what conditions a company can reasonably outsource their copyright ownership rights and enforcement claims.
It may turn out the BSA may need a much higher degree of involvement by the underlying copyright holder. And if you are accused, I suspect you deserve at least that much. To face your accuser.
They are accusers by proxy. Doesn't sound exactly right to me. Bring the actual aggrieved party into court every day.
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So we now need a lawyer to deal with their claims and we don't have the money
For some reason (perhaps it's reading comprehension) I gather from that quote that he already knows the best answer would be a lawyer, but he has no money. I can guess that he probably did a bit more than just look in his wallet before drawing that conclusion. I don't know "a lot" about the poster, I just know what he posted and didn't ignore it and reply to a fantasy poster.
So, if you have a way to get a lawyer without money, that might help. A pointer to any free or low cost legal services you might know of might help. Just telling him to hire a lawyer is nearly non-sequitur.
I didn't recommend he go it alone. I just didn't reply to "I've locked my only keys in the car, what should I do" with "unlock your car with your spare keys and get them out, of course". He may end up with no choice but to go it alone, but I didn't recommend it. I also didn't recommend that he just ignore it.
Your advice is to do what he already said he can't do. I'm sure that was really helpful.
However, it seems that the only thing we are in disagreement with here is your understanding of what I said.
Um, I didn't misunderstand anything. A Court can't LEGALLY issue an Order to allow a PRIVATE COMPANY to come into your business and "Audit" or "Sieze" SHIT. Do you REALLY think that a Court could issue an Order to allow ME to "audit" or "sieze evidence" from YOUR BUSINESS??? Guess what? Neither can the Court issue an Order to allow the BSA to act like LAW ENFORCEMENT, in ANY CAPACITY WHATSOEVER.
You're right, not in the US. But in Canada they have something called an Anton Pillar order, which incredibly not only allows all that but it takes place in secrecy. Even after the fact the person who was raided can't discuss it. It kind of blows my mind that Canada has that or that the people in Canada let that continue.
The difference between Canada and the US. In the US we are expected to challenge our government. Make them work, do their job correctly.
In Canada it seems a good number of the citizens have the mindset "oh, what am I gonna do about that?" I've heard them say it.
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Look! Up in the sky!
It's a bird. It's a plane. It's the joke you missed!
Ahh - My eye!
The doctor said I'm not supposed to get Slashdot in it!
The BSA wouldn't be seizing it, the US marshal with them would be. A lawyer or representative from the BSA and a technical team capable of doing the audit would be there fulfilling the order. The order would be issued under http://www.copyright.gov/title17/92chap5.html#503 >existing copyright law
Congress did pass that exactly when they gave the justice department the ability to conduct investigations into copyright violations and the courts the tools and powers to secure evidence.
Perhaps you should look into what is called an Anton Piller Order which is about the equivilent outside the US and US copyright law which allows it inside the US.
Well, you are getting the cart before the horse here.
They have to prove a violation of copyright has taken place (which can be other then just distribution) if they are to be successful in their claims. But to get the proper orders which you seem to not understand, they only have to make a claim that is believable to the proper judge.
Criminal or civil, the courts can under law passed by the US government, impound as evidence, any and all material related to the alleged copyright violations before the csse goes to court in either a criminal or civil form.
If there's no FOSS version of a business critical software function, stick it on a server and stream it to a Linux desktop. License compliance is dead easy in a virtualised environment because it's all done in the virtualisation layer. Using thin clients or Linux+terminal software makes it nigh-on impossible for an employee to install unlicensed Windows software without your knowledge.
Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
This is really bothering me that there are so many references to the Fourth Amendment and police/warrant in these responses.... civil == civil. The Bill of Rights protects one against the Government, not others. Civil != criminal. I "like" the post early on that /. is full of amateur lawyers who think they know whats up, but really have not a clue.
I did that in (UK)primary school history - a long time ago. It just stuck in there until required.
I'll see your Constitution and raise you a Queen.
Wow. Just, wow. I got chills down my spine reading this thread. This must be what people in the middle ages must have felt during the height of the Catholic Inquisition. A mere accusation is enough to ruin your life. Suffer not the software pirate to live. For a small business, it is practically a death sentence. When God is Commerce, CEOs are Prophets and lawyers are the Priesthood, Copyright laws are worse than anything the Church can come up with.
I've had to go through a BSA audit after we fired a former employee. The BSA sent their usual demand that we provide proof that we're fully licensed. We (I mean the Finanace and IT department) spent weeks going over years old receipts and license records. Countless hours lost to this bullshit while real work went uncompleted.... the BSA then said that out paperwork was insufficient, that that we would have to produce the original purchase orders. Round and round it went until the C-levels at the company finally bent over and begged "not too hard please". We wound up having to pay a fine for like a single copy of Visio or something. the most expensive copy of Visio anyone has every paid.
The BSA exists entirely to make money for itself. Everything you do will not satisfy them. They really should be stopped under RICO.
Seriously, this is an honest question. Why do we still need lawyers to defend ourselves nowadays, when we can access any information with a few clicks of the mouse and a few keystrokes on the keyboard? What can lawyers do that we can't?
Dropbox drops it like it's hot.
I can't believe this either. But perhaps they mean that someone can transplant things like stickers after the fact, so they are unreliable. Maybe we should start insisting on etched serial numbers now, like engine blocks. (Etched on what though? Duh.)
Not a lawyer.
LAWYERS WRITE IN ALL CAPS.
(Additional text to skirt the lameness filter.)
Perhaps you weren't reading but the poster I was replying to advised that he go it alone without contacting a lawyer first. While being friendly and cordial works most of the time, his advise would have been taken as either an act of admission or denial by the BSA. Since they started with threats, I highly doubt the BSA is looking for friendly or cordial. As for the OP, he's already dismissed the option of a lawyer. My advice is not to dismiss it yet; it may be the OP does not have the cash. That does not mean he does not have a way of getting the money or raising the money.
Well, there's spam egg sausage and spam, that's not got much spam in it.
As Captain Hindsight would say: "You should have gotten Legal Insurance".
All joking aside, if you're thinking of starting a business, that would be something to definitely look into getting. Especially if you're going to be in the software business.
I hate the BSA (and their members) just as much as the next person, but I would like to propose a new strategy. Now I know there are many posters claiming that Free software can't meet their needs, but I'll bet they haven't even looked. Maybe Free solutions to their problems aren't being created because they are infringing on copyrights instead of paying someone to create a Free version?
So here's my plan: take the BSA up on their offer. Start reporting *everyone* who infringes on copyright. No, of course, not for the reward (which it sounds unlikely to be given anyway), but to force people to make the hard choice they've been avoiding: either pay the price of non-Free software, or fund someone to make a Free version.
Sound evil? It wouldn't be possible without copyright. Of course, if we abolished, or at least limited, copyright, and outlawed restrictive licenses and groups like the BSA, these problems might go away. But I really don't feel any pity for anyone using non-Free software. There *are* options, people *have* been warned. The most effective way to combat the BSA is to stop giving money to and stop using software from their members (like Apple and Microsoft).
Nathan's blog
Kagetsuki, this happens to be my business (it's called Software Asset Management aka SAM), so I am at the same time excited to see a thread on /. but appalled at many of the responses. Please, please, please, do yourself a favor and engage both a lawyer and a licensing consultant. I'd be happy to refer you. The lawyer is obviously to deal with the BSA's lawyers. The licensing consultant is to provide a full 'license reconciliation' for the products in question, taking into consideration each specific vendor's rules for counting proof of purchase, application usage, and license entitlement consumption. As a company with a volume license agreement, you have some important rights, but also a lot of responsibilities. The vendors with which you have volume license agreements have the right to audit you (it's right there in the boilerplate - check it) and the BSA often takes up this effort. But since it is often a revenue generating activity for them, your best bet is to help them understand that their return, i.e., new licenses you will have to purchase, will be not worth their effort in auditing. Feel free to reach out if you want to know more.
M
Then the correct advise was :^don't do that^.
No the advice was not to dismiss the notion of getting a lawyer without exploring more options and pointing out the lack of sufficient funds was the obstacle to overcome. Also IANAL, but I would advise him not to admit or deny anything to the BSA yet.
Well, there's spam egg sausage and spam, that's not got much spam in it.
You've hit the gaming strategy nail on the head. The corporations, suppliers, advisors, allies, assets, customers and competitors, et al, aren't the game players. They are the pieces in the game. It's the lawyers who are the game players, and they win regardless what happens to you and your company. Effectively, you now need to hire your own mercenaries to protect your settlement from the ronin threatening to attack. And yours have to be better than the ronin. Looking at history, the rulers of kingdoms stand a relatively good chance of being replaced by the mercenaries they hire to protect their kingdoms.
"Sufficiently complicated financial instruments are indistinguishable from fraud." --bmcraec
Most of the free software you mention is feature compatible with the closed source software.
I'm fairly proficient with GIMP. But in July, I tried to use GIMP 2.6.x to open a .psd file from a client, and it failed because GIMP can't open .psd files in CMYK color space.
And that is exactly the reason why everybody(*) hates lawyers: they preserve and perpetuate a system where you cannot get justice, you must purchase it.
(*) Possibly excluding lawyers