Show Me the License: Is Your Company Ready?
Business Litigation Attorney
by David Gurnick
818.907.3285
Good record-keeping is a burden. But doing so is important. Here is an example of why it is important to keep good records of all software licenses.
The Business Software Alliance is a consortium of large software and tech companies like Adobe, Intel and Microsoft. One of BSA’s missions is to stop software piracy.
BSA advertises, asking the public to report piracy. BSA’s ads encourage workers to report their employers for potential unauthorized software, via a toll free number or webform. BSA offers cash rewards. Their website notes that in a recent year, they investigated over 15,000 piracy reports. Many of the reports are from disgruntled ex-employees, seeking revenge for real or perceived grievances.
BSA contacts businesses suspected of using unauthorized software and often demands that the company do a self-audit and inform BSA of all unlicensed software in use. BSA then negotiates settlements, typically a multiple of the license fees that would have been charged. BSA claims the multiplier is essential to deter piracy. The multiplier also generates more revenue for BSA.
Company self-audits might identify typical uses of software programs, for example Adobe Photoshop, Microsoft Office, or other programs. Sometimes a company will respond pointing out that the software was purchased properly and is being used legitimately. One of BSA’s possible responses: “Show us the licenses.”
Software Licenses: What Does the Law Say?
What if the software was legitimately purchased many years ago? Who keeps copies of old licenses and purchase receipts?
Most record retention policies allow destruction of documents after four, five or seven years. Many companies continue to use software for a decade or more. Even a retention policy of 10 years would not produce software licenses or purchase receipts for software purchased that long ago.
Having no proof of purchase and no copies of licenses could potentially result in financial penalties for many companies. Because, under the law, a software maker like Adobe, Microsoft or BSA as their representative, can prove infringement by showing just two facts:
- That it owns the copyright for the software (easy for Adobe to prove with regard to Photoshop, and for Microsoft to prove with regard to Windows, Word or Excel);
- The company used the software (also easy to prove, especially when the defendant acknowledges using these programs).
Under the law, the company’s response – that the software was legitimately purchased, and is used under a proper license – is a legal defense.
The law says it is the company’s burden to prove it has a license from the copyright owner. The proof is a copy of the license or proof of purchase. A company that cannot produce a license or proof of purchase may be found liable and labeled a “pirate.”
For a company that cannot readily find such records, there might be secondary methods to prove software was licensed.
A company might ask the supplier of the software if it still has records of the original sale. The software maker might have records showing the original software purchase was registered by a warranty registration. A software consultant or technology officer may have other records proving the purchase, based on requests for assistance or consultation with the maker over the years. Old billing and payment records might be unearthed, to see if they reflect the original purchase. But often such records are difficult, or impossible to find.
For most companies, the message is clear: Keep the purchase records and licenses for all software, permanently.
Because copyright ownership can last over a hundred years, and it is always the user’s burden to prove proper licensing, these records may be essential, even many years after the software was first purchased. It is easy to take a photo or screen shot and save these in electronic files. Then, if you are contacted by BSA or someone else demanding that you prove your software is authorized, you will be readily able to do so.
With BSA asking potentially disgruntled employees to report, this is a relatively simple step for proving you’re licensed to use.
David Gurnick is a business litigation, franchising and licensing attorney. Contact him directly for more information at 818.907.3285 or email: dgurnick@lewitthackman.com.