On Mon, 3 Jan 2000, Linda Pickering <lpickering[_at_]lowenstein.com> wrote:
>
> A client has received a threatening letter from the Business Software
> Alliance alleging illegal duplication of software. Does anyone have
> any experience in dealing with them? What sort of settlements do they
> require/agree to?
It depends on the 'facts', at a minimum:
- whether this is the first infraction
- whether the company had policies in place to address copyright issues
- the length of time the infringement occurred (more likely to be known
by management the longer it transpired)
- whether the copying was known by management, and/or done with their
explicit or implicit approval, or deliberate indifference
- the amount (number) of illegal copies made
- the use made of the illegal copies
- whether the illegal copies were further distributed outside of the
organization
- whether the acts took place on the premises of the client, or at
employees homes
- the value of the software copied (license fee)
- whether the client is in an industry where the BSA wants to use the
client as an example (in which case getting a confidentiality clause
may be difficult)
- whether the amount of damages the BSA could collect in court could
be enhanced under 504(c) (i.e. was the infringement 'willful as that
term is used in the statute)
- the extent to which the client admits wrongdoing, and takes prompt
immediate action to cure the infringement, which can in some cases
require independent investigations, firing employees etc.
- the owner of the software (in some cases). I do not know this
personally, but is my understanding is that not every software owner
has assigned all of their rights to conduct infringement cases to
the BSA.
- if the license is in issue (i.e., for example, the client claims the
license permits the acts that were alleged to infringe, as in some
weird seat license provision, site license, or other ambiguous license
term), whether the client obtained an opinion of competent counsel
before commencing the acts that constituted the alleged infringement.
- if the claim is for a potential fair use issue (perhaps archival,
backup testing, load testing etc.), consideration of fair use defenses
This may just be a partial list, but if the client copied software
without a license that permitted such copying, I would take the matter
very seriously and tell the client they will be paying amounts in excess
of the amount they would have paid if they had purchased the license.
The first thing we always do is interview everybody involved in a way
that our investigation is both protected by atty-client privilege, but
also done in a way that if we have to deliberately waive the privilege,
we can without having to turn over damaging evidence. The atty-client
issue is tricky. We always get out the cases and review them (e.g.
control group, scope of crime fraud exception etc.). You have to
protect the client as much as possible by getting the white hat back
on the head...
HTH, best -mike oliver
Bowie & Jensen, LLC
http://www.bowie-jensen.com/
<mikeoliver[_at_]home.com>
Received on Thu Jan 06 2000 - 02:32:19 GMT