The BSA's "nauseating" anti-piracy tactics
By Stewart Mitchell
Posted on 14 Mar 2012 at 11:02
The Business Software Alliance (BSA) has been accused of heavy-handed tactics that could drive small companies to incriminate themselves.
The issue came to light after one small-business owner approached PC Pro with a letter received from the BSA, an industry anti-piracy body whose members include Microsoft and Adobe.
The business owner believes the demand was sparked by a tip-off from a disgruntled employee using the BSA’s incentive scheme, which pays up to £20,000 for such information. The BSA says a quarter of cases involve payments to informants.
The BSA won £2.2 million in settlements and licensing fees in 2010, without taking a single case to court
“I’m quite nauseated by the BSA’s tactics,” the owner of the 15-employee company told PC Pro. “It is basically harvesting allegations from disgruntled employees and farming them out to expensive law firms. It seeks proof of compliance, but we’re a small company with nine-year-old PCs – even though someone could stand and wave a finger and say ‘You should know exactly what’s on those systems’, but the truth is I don’t. The reality of running a small business, particularly in a recession, is that you don’t.”
The letter accused the small business of running unlicensed software and demanded the firm submit to a software audit, asking for receipts for software purchased as long as seven years ago. The BSA letter “required” the audit to be submitted within 21 days, and warned that courts may award “damages in respect of flagrant infringement” – even though the BSA told PC Pro it hasn’t pursued a single court case in the past five years. Neither does the BSA have the power to search a company’s computers under warrant.
The letters are vague about what action the BSA would take if the company refused to submit to the audit, but the strong wording could convince companies to pay up to make the problem go away.
The BSA’s tactics were criticised by the Open Rights Group (ORG), which says rights holders – and their representatives – must be clear about what action they can take. “Businesses do need to use licensed software, but where intermediary firms are used there needs to be real care around how the proposition is communicated, so that it doesn’t lead to people being unfairly strong-armed into paying settlements or submitting themselves to onerous auditing,” said Peter Bradwell, a copyright campaigner at the ORG.
The letter, seen by PC Pro, was sent by law firm Bristows, and states that the “BSA has received a complaint alleging that your company is using unauthorised or unlicensed copies of software”. The letter demands the recipient conduct a full software audit, saying that if it reveals improper copies of software, the companies could “claim various remedies, including that the unlicensed installations be deleted” and “compensation in the form of damages be paid for the period of unlicensed use”.
The letters appear to be having the desired effect: the BSA won £2.2 million in settlements and licensing fees in 2010, without taking a single case to court. The most recent case publicised by the BSA saw an architecture firm pay £15,000 in damages, plus £18,000 to “correct the under-licensing”, while last year a plumbing firm paid £19,000 in total, and a labelling company paid £24,000.
The BSA has confirmed to PC Pro that it keeps the damages, but not the licensing fees, generated via its actions to “go towards BSA’s running costs, helping to fund BSA’s activities, including local education programmes”.
The BSA makes no secret of its tactics, or the scale of its operations, with the company last year publicising a campaign targeting 1,500 companies in Yorkshire, asking them “to declare the software of BSA members installed on company-owned computers, devices and networks to check that it is fully licensed”. Businesses were directed to complete an online self-audit form.
According to the BSA, any company flagged as under-licensed is given 30 days to become legally compliant or face “investigation and potential legal action”. The BSA said it only instructs solicitors to start action if it’s convinced an offence has been committed, so companies taking part in a self-audit could be incriminating themselves.
The letters were written to generate maximum impact without necessarily having much power to act
“The BSA’s solicitors only contact businesses with requests for software audits when the BSA strongly believes there to be a case of under-licensing/software infringement,” said Julian Swan, director of compliance marketing for the BSA in Europe. “If a company continues to deny that it’s using illegal software, against all the evidence, then the BSA may resort to legal action via the courts.”
As the BSA letters tend not to lead to court cases, one lawyer suggested the letters were written to generate maximum impact without necessarily having much power to act.
“It’s designed to scare the recipient into thinking that they’re obliged to provide certain information when, in fact, it’s difficult to see that they are,” said David Woods, a senior associate within the IT team at Pinsent Masons. “There are references to an unspecified complaint that seems to have been made, and after that it’s a fishing exercise.”
The right course of action for any company receiving such a letter would depend on the circumstances, but two lawyers told PC Pro that companies should think twice before submitting to the BSA’s demands. “I would expect that, in terms of a business model, what the BSA will not be doing is pursuing each of these matters to their ultimate conclusion,” said Woods.
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What if a company simply told the BSA to go away - what exactly could the BSA do?
Copyright infringement is a civil dispute so unless the BSA had compelling evidence of infringement I don't see what they can do to force an organisation to undergo an audit?
By Agrajag on 14 Mar 2012
Illegal demands for money should be taken to court
If I received one of these demands for payments using threatening methods I would just tell them to get lost unless they want to be sued for demanding money with menaces which is what they are doing and that is very illegal.
By curiousclive on 14 Mar 2012
if your PCs are running no software published by members of BSA then there would never be a case to answer.
By revsorg on 14 Mar 2012
As with so-called 'Penalty Charge Notices' that are regularly attached to cars in supermarket car parks for overstaying by a few minutes, the trick is to ignore each and every letter from them. They never go to court because they haven't a leg to stand on.
By ElectricPics on 14 Mar 2012
"...[the BSA] demanded the firm submit to a software audit, asking for receipts for software purchased as long as seven years ago."
Well that's just plain ridiculous! That's effectively saying: 'If you can't prove you've bought it we'll assume you've stolen it'. Er, 'innocent until PROVEN guilty' - pretty sure that's still English law.
As curiousclive said, it appears to be demanding money with menaces - I'd (politely) tell them where to go stick it. Who regulates these people anyway? They're acting as if they are some kind of legal authority, I think that needs looking at.
By Mr_John_T on 14 Mar 2012
Maybe Bristows have allegedley been reading the Andrew Crossley (ACS) Book of Copyright Law!
By zx_81 on 14 Mar 2012
It's a lucrative business model - fear.
I'd be more inclined to pay a parking charge though - I'm sure I saw a programme where they exposed a cosy relationship between private firms and councils which could lead to actual bailiffs at the door.
By dubiou on 14 Mar 2012
Do NOT ignore these letters
Take a tip! Ignore these letters at your own peril. The BSA can obtain the necessary powers to search and seize assets (obtained via a court where required) and you will find that you have very little defence, about 1 hour is the max you will get to "fend them off" but we don't like your chances. see http://www.pcprofile.com/anton.htm
By pcp2012 on 15 Mar 2012
Bin the letter
pcp2012 is talking the same language as the BSA - "crap".
The BSA has no more legal right to search your PC than I do. I suggest a letter back that "requires the BSA to stick it's collective head down a toilet".
An AP is only obtainable via the court (not "where required"), is not obtained on a whim, and requires some solid evidence before being granted.
@dubiou - the only time a bailiff will knock at the door is when a parking ticket was issued by a council parking warden. The "PCN"s referred to earlier, have simply "invites to pay" and have no legal standing. At all. Which is why they are designed to closely mimic an official ticket, but not be an exact replica.
By alan_lj on 15 Mar 2012
It gets worse
Obviously BSA tactics vary from country to country. I can only speak for where I live (Czech Republic), and I can tell you that things get A LOT worse with BSA elsewhere.
Over here BSA is abusing relative ignorance of Czech judicial/police forces in IT matters to pose as an "industry expert". It then proceeds to extort IT shops.
In a famous case several years back, BSA acting as industry expert body persuaded police to perform a raid at a prime national Linux PC vendor just a week after said vendor has refused to sign a deal with Microsoft.
They confiscated full warehouse of computers for "evidence" in a future court case, accusing them with IP theft, as any computer sold without legal copy of Microsoft Windows must obviously be using illegal Windows. The court case obviously never materialized, but the company still nearly went bankrupt waiting for their stock to be returned. When it was, the computers were hopelessly aged and a fraction of original price.
By zzencz on 15 Mar 2012
Too many people know about Linux now for the BSA to bully Linux users
My advise would be to abandon Windows for Linux - especially a modern distribution like Ubuntu (http://www.ubuntu.com ) or Fedora (http://fedoraproject.org ) and use Zentyal (http://zentyal.org ) for servers. It CAN be done - I use Linux on a day-to-day basis as my primary desktop and have done so for some years now. It would be very satisfying to be able to demonstrate that there was not a single BSA licensed product in the company - and therefore to be able to kick them out in complete confidence!
By John_Cockroft on 16 Mar 2012
This has really annoyed me
I have today received one of their letters saying I must complete their online Software Declaration. I have no idea why on earth they would think my company would breach any copyright laws, we're a finance house!
My response, by email, said if we have entered into an Agreement with any software vendors, then that is between us and them and has nothing to do with your organisation. I haven't binned it like some of you suggested but will retain for future referal as there are several issues with it; I especially like "the End User Agreement License usually includes a clause that states bla bla bla". Well if I'm going to submit to any such request I want to know exactly where it says I have to comply, I also want authority from the respective Vendor/s and the reasons for the audit.
I'm looking forward to their response and will post if and when it happens.
By LawAbiding on 29 Jun 2012
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