Re: Business Software Alliance

On 01/05/2000, Mike Oliver <mikeoliver[_at_]home.com> wrote:
>
> 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...

Hello, Mike,

I'm writing a book on copyright management for school personnel (primarily from a library perspective, but you can't just limit things like that!) One question I'm frequently asked is how likely someone is to get sued, or just slapped on the wrist. I really like your analysis below, and would like to use these points as examples in the book (with credit, of course). This would be in a general discussion of possible legal actions, not as a specific analysis or part of a specific case. Would you allow me to use your discussion, below, in this manner? I can put any disclaimer you would like to protect you.

Thanks for your consideration.

Carol Simpson, Ed.D.
Asst. Professor
School of Library & Information Sciences University of North Texas
P.O. Box 311068
Denton, TX 76203
940.565.2445
940.565.3101 FAX
csimpson[_at_]lis.admin.unt.edu Received on Thu Jan 06 2000 - 19:28:10 GMT