Guilty Until Proven Innocent – Software Licensing

January 8, 2015 mitch tanenbaum

Lewitt, Hackman, Shapiro, Marshall and Harlan, a law firm based outside Los Angeles, has an interesting take on software licensing. They don’t say whether they have been representing plaintiffs or defendants in software piracy lawsuits, so I don’t know if there is a bias in their blogging, but it is an interesting point of view.

They talk about the Business Software Alliance or BSA, an industry trade group made up of heavyweights like Microsoft, Adobe and Intel, that offers rewards to current or former employees to turn in their company if they suspect they are using pirated software. Note they say “suspect” and not “have evidence of”.

The BSA investigates about 15,000 companies a year, starting by asking them to do a self audit and then “negotiating” for damages. Having been on the wrong end of that deal once, we had to write a check with way too many zeros before the period. Not fun.

That is old news. The BSA has been kicking this dog for a long time and they try to get the occasional large penalty in order to try and cut down piracy, which from their point of view is understandable.

Here is what is interesting. According to Lewitt, Hackman, under the law, all the BSA or Microsoft or whoever has to do to prove infringement is the following:

That it owns the copyright for the software
That the (soon to be) defendant used the software

They don’t have to prove that you pirated it or that you are using more copies than you bought. At this point, you are assumed to be guilty and have to prove your innocence, something that very few companies can do.

Your claim that you are using the software legally is a legal defense.

The law says, according to Lewitt, Hackman, that it is your burden to prove you have a license from the copyright owner.

I doubt there is any company on the planet that has zero disgruntled ex-employees and if reporting you, anonymously, to the BSA is a way to get both revenge and cash, I could see that some people might do that. The BSA even runs ads in magazines suggesting pretty much this.

How many companies can show an invoice or check copy for every copy of Windows, Office, Photoshop or any other piece of software you have installed on any computer in the office. By the way, whether you are using the software or not is irrelevant to your defense. If it is installed and unlicensed, you are guilty. Been there, have the scars.

So, one part of your business risk management program should be to keep copies of all software receipts, licenses and other records so that if the issue comes up you don’t have to recreate history.

Food for thought.

Mitch