Untitled Page

Scott Technology Attorneys

In the News


SSLLP Interior

Business Software Alliance: Outright liars or just truth challenged?


Don't expect fair play from the Bully Software Alliance

By James E. Gaskin - Network World, 06/29/06

Earlier this month, I began talking about the new software Mafia, aka the Business Software Alliance (check out "The software protection racket, Part 1 and Part 2"). Two goals this week: get the BSA to tell me what prompts a software audit, and get Microsoft - one of the primary forces behind the BSA - to define piracy. Oh, yes, I also asked Microsoft about how it helps customers prove their software is legal.

Sadly, the tradition of asking direct questions and getting direct answers has gone out of style at the Bully Software Alliance.

Me: What kinds of evidence do tipsters bring to you that prompts software audits?

Jenny Blank, Director of Enforcement for the BSA: "Depends on the case." That’s a fancy way of saying "no comment," isn't it? Further, they "won't discuss the kinds of people who call us."

So I tried again: What motivates people to call the BSA?

Blank: "It's hard to know. Often they are the stereotypical disgruntled former employee. But the issue is not what motivated them, but do they have a story to tell us."

Let's dispense with euphemisms: the tipsters are rats. They are motivated not by concerns about the welfare of software giants like Microsoft missing a few dollars, but by the huge rewards the Bully Software Alliance dangles. By huge I mean up to $200,000, just recently increased from $50,000.

But Blank has no clue what motivates them, except when I asked about reports that the rats are the very software administrators trusted by companies to track license compliance. Blank says "We have no reason to believe we've investigated cases where that's been a problem."

Judging by what attorney Rob Scott of Scott & Scott LLP says, that's stretching the truth. Clients regularly tell Scott they feel strongly the person making the report to the BSA was their employee in charge of software compliance.

But companies will never know who squealed. Blank says, since these aren't criminal proceedings, you don't get to face your accuser in court. In fact, Blank says they'll fight in court to keep the rat's name a secret. But she assures me they "vet" the rats, er, informants completely before proceeding against a company. Guess we'll just have to trust her to really, really make sure the rat is motivated by doing the right thing rather than simply chasing the reward money.

Going to court is an interesting topic as well. I asked Blank which court cases are in the legal databases so I could look them up, since I hadn't found any settled court cases with the BSA's name. "Litigation is in the names of the members, since they are the actual owners of the copyright, not the BSA," she said.

Still lacking any court cases after more searching, I followed up with an e-mail asking for names of specific court cases. Blank, via e-mail: "We don't provide information on cases filed in the past and there are no judgments to read - they all settle early in the process." Yet she didn’t offer that information while on the phone, making me wonder if she hoped to confuse the issue and have me think that some cases have been adjudicated (and a precedence set).

No luck getting straight answers so far, so I asked Blank to define piracy. "Piracy is the unauthorized copying or distribution of copyrighted works."

Sounds like the typical warehouse full of counterfeit software, right? So how does the BSA differentiate between overuse (75 computers but only 70 software licenses) vs. what you and I define as piracy? "Each case investigated by the BSA is ultimately settled on its own merits, which would include the extent and cause of the piracy." In other words, the BSA treats small businesses lacking an appropriate invoice the same as the warehouse full of counterfeit software.

Maybe Microsoft can help, I thought, since it is involved in most of the BSA cases. I asked the same question about license overuse and wholesale piracy. Cori Hartje, Director of Genuine Software Initiative at Microsoft, answered via e-mail: "Piracy is the intentional or unintentional sale or sharing of illegal copies of software."

At least Microsoft says blatantly it considers an extra few installed software copies just as bad, legally, as the guys churning out truckloads of counterfeit copies.

Microsoft forces authentication on most of its products, particularly those purchased at retail (where many small businesses buy their software). Will Microsoft use that information to help a small business audited by the BSA? Let's say Joe's Cleaners has the canceled check and original disks for three copies of Microsoft Office, but not the invoice. But all copies were registered and authenticated by Microsoft, so if the authentication date matches the check date, all will be cool, right?

Not according to Microsoft. "These products have what is known as product activation. The consumer enters in an activation key that comes with the product, this process then checks in with the Microsoft database to basically unlock the product for use. Microsoft does not keep data on the consumer, it is totally anonymous." So says a "spokesperson" via e-mail.

Direct answer from Microsoft to Joe's Cleaners: we'll slam you if you install one of those Office copies on another computer and register it (the registration will fail, so they do keep track). But if the Bully Software Alliance comes to your door, Microsoft says: you're on your own, sucker.

Next time I'll relay some reports from readers.