A Look Inside the BSA 458
die_jack_die writes: "SFGate is running this article about the Business Software Alliance. I'm sure the BSA loves when they get scary stories of their tactics into the press, but this piece does quote the EFF's Fred Von Lohman making the point that companies who don't want to deal with the BSA can always use Open Source software. Most telling quote: 'every cent of those massive settlements stays within the BSA -- member software organizations receive only the licensing fees.'"
I'm sure YOU might, but... (Score:3, Informative)
And yes, I know all about policy editors and drive imaging and a lot of other things you can do to try to keep them from messing around with the systems or clean up after them when they leave for the day.
The bottom line is, like a lot of other companies, we spend a measurable amount of time and money on compliance issues every year even though we have never pirated software. If it weren't for the BSA, or more precisely our ties to products made by their member companies (thanks AutoDesk), this would be much less of an issue for us.
Re:Or, vice-versa... (Score:5, Informative)
Last I heard, even though two ex-employees had turned them in, the BSA simply walked from the issue as, from what I gathered, they really don't have a legal leg to stand on.
What a puff piece by SFgate... (Score:4, Informative)
This has got to be the biggest puff piece I've seen in quite some time.
Oh, of course they don't. Only absolutely non-frivolous investigations costing perfectly innocent companies time and lost profits.
So how do we know it isn't frivolous?
In other words... they only want to target companies with a good credit rating. Remember the first rule of lawsuits: only sue people with money!
Laughable tactics to a large company (Score:5, Informative)
Re:Or, vice-versa... (Score:3, Informative)
This is probably pointed out somewhere else, I didn't take the time to look...
You gentlemen are confusing criminal law with civil law. A criminal in US court enjoys the presumption of innocence. The burden of proof is on the prosecutor. In civil court, a simple proponderence of evidence is neccessary. If the plaintiff can make it look like the defendent did them wrong, then they win. They don't have to prove it by dusting for prints or anything.
A company accused of pirating software is taken to civil court. The plaintiff, in many cases the BSA I would imagine, must represent themselves. In criminal court however, the state (city, county, state, federal, whatever) prosecutes the case, and the victim of the crime is not required to pay the fees associated with going to court.
Unless you're defending a drug cartel or something like that, criminal court is usually not very lucritive for a lawyer. Civil court, however, is very lucritive, and lawyers who practice in civil law are usually the ones who create the scumbag image.
Re:Or, vice-versa... (Score:2, Informative)
Right.
In civil court, a simple proponderence of evidence is neccessary
I don't know what a "proponderence" is, so I don't know if this is wrong or right.
If the plaintiff can make it look like the defendent did them wrong, then they win.
Assuming that by "defendent" you mean "defendant", you are wrong. A defendant is right by default, no matter where you try the case -- civil or criminal court. It's always the duty of the accuser to prove the defendant wrong.
Civil court, however, is very lucritive
if, by "lucritive" you mean "lucrative", you may be right or wrong, depending on the case. There are "ambulance chasers" who are happy to get a few meager dollars on each case, and then there are the Ralph Naders.
Be careful, but informed (Score:5, Informative)
While BSA likes to compare themselves to other licensing enforcement operations, such as ASCAP/BMI, there are fundamental differences, and at the end of the day, these can make substantial differences in the result if you are willing to duke it out.
A truly compliant entity, even poorly documented, can turn the tables powerfully on such a bully. Indeed, even a party who is slightly out-of-compliance can do so, by using a number of devices available at law, such as Offers of Judgment, to turn the tables or test the will of a BSA threat. (Indeed, it may be wise -- again YMMV -- to consider filing a preemptive declaratory judgment action against them for several reasons.)
ASCAP/BMI, when asked, will produce actual opinions of actual cases where they have collected actual damages at trial in comparable enforcement scenarios. Ask a similar question of the BSA -- they will cite to the cases of the Performing Rights Societies and not to those of the BSA.
Ex parte seizures or searches can backfire seriously as well. A 6th Circuit case not too long ago found that a defendant who can show a seizure to have been improper can proceed past a motion to dismiss on a civil rights and trespass claim not only against the overreaching plaintiff, but also against their attorneys. It is a good idea to put them on notice of this fact early in the correspondence.
And from this article, I learned something quite interesting -- their constituents only get the license fees, they retain the multiples they extract. Not so with Performing Rights Societies, who, as understood, are non-profit entities that return their proceeds after costs to the composers and rights owners they represent.
It is therefore essential to get solid representation from someone who knows what they are doing. A stone wall could expose you to substantial liability. On the other hand,
Please do not consider any of the above to be legal advisc beyond the following: get a lawyer who is highly competent in this area to advise you. Specific legal advise is highly fact-dependent, and subtle differences in facts can often necessitate dramatically different strategies. Accordingly, no "cookbook" or single posting can provide you with a clear, definitive solution -- get competent advice and act on it.