Time Settlement Right for Software Audits

Keli Johnson Swan  Comments (0)
There is a growing trend for software publishers to keep software audits in-house and avoid using external organizations to pursue copyright infringement claims. Often, the compliance teams at the software publishers seek payment for software non-compliance through contr......

Oracle ULAs Require Delicate Balancing

Christopher Barnett  Comments (0)
Many larger companies feel an understandable desire to move toward, centralized, enterprise-level software licensing agreements. Such frameworks often have the advantage of allowing licensees to spread their license spends more evenly over the term of the agreement and to ......

Settlement Structuring for IBM Audits

Christopher Barnett  Comments (0)
Software-compliance audits initiated by IBM can be extremely burdensome and time-consuming and can force companies to face challenges that are somewhat unique among major-publisher audits. For one example, a significant component of IBM’s business model is the acquisitio......

Avoid Ambiguity in Microsoft Licensing Agreements

Christopher Barnett  Comments (0)
CTOs who have read Microsoft’s volume license agreements and product use rights documentation know that Microsoft has a special place in its heart for contractual “gray area.” To some extent, that fact likely arises from the practical impossibility of trying to acc......

Top Tips for Post-Audit Software Remediation

Keli Johnson Swan  Comments (0)
Responding to a software audit can be an arduous, expensive, and time-consuming process for a company. The remediation process to close compliance gaps may vary slightly depending on whether the audit is initiated the software publisher itself or outsourced to an agency ......

BSA Informants: Disgruntled Employees

Keli Johnson Swan  Comments (0)
How to Protect Your Company against Copyright Infringement Claims by Disgruntled Employees Seeking a Reward In an effort to enforce the copyrights of its members, Business | The Software Alliance (“BSA”) offers the potential for monetary rewards to any informant tha......

Licensing Oracle Software in a Third Party’s Cloud

Christopher Barnett  Comments (0)
Many companies would like to know whether and to what extent their existing Oracle software product licenses entitle them to use that software in a third-party cloud-hosting environment – such as Amazon Web Services’ (AWS’s) Elastic Compute Cloud (EC2) environment – ......

Products Liability and Kaseya’s Ransomware Attack

Julie Machal-Fulks  Comments (0)
The recent ransomware attack involving Kaseya’s VSA product has left managed service providers (“MSPs”) and end users evaluating what, if any, legal recourse they may have against Kaseya. The onerous limitations of liability provisions and indemnification clause in......

Burden of Proof in Copyright Infringement Matters

Keli Johnson Swan  Comments (0)
In a civil copyright infringement claim, many users of copyrighted material are surprised to learn that once the copyright owner has demonstrated that it owns a copyright in the work, the burden shifts to the copyright user to demonstrate that it had the right to use the......

Top Tips for Improving Outcomes for IT Transactions

Christopher Barnett  Comments (0)
Negotiating with software, SaaS and hosting vendors is a leverage game. Market leaders like Microsoft, Oracle, IBM, Adobe and SAP know this. Those vendors have structured their sales processes to maximize their ability to exert control over the negotiations framework and......

Do You Need a Microsoft Service Provider License (SPLA)?

Rob Scott  Comments (0)
If your business model involves hosting applications, websites or data, chances are that Microsoft will require you to obtain and follow a SPLA. Businesses that use Microsoft software for internal use only, or where third-party access is anonymous or unauthenticated, do not ......

How to Find the Best Lawyer for Your BSA Audit Case

Rob Scott  Comments (0)
I am a partner in Scott & Scott, LLP a firm that focuses on technology law matters in Southlake, Texas.  We represent companies accused of software piracy by industry trade groups such as the Business Software Alliance and Software Information and Industry Associati......

Autodesk Audits: The Importance of Serial Numbers

Julie Machal-Fulks  Comments (0)
In many software audits, the auditing entity like the Business Software Alliance or the Software & Information Industry Association requires a dated proof of purchase to demonstrate when a license for a software product was acquired. However, in audits initiated by A......

Autodesk Licensing Implications of Working from Home

Keli Johnson Swan  Comments (0)
The Covid-19 pandemic shifted entire non-essential industries to a remote workforce, leaving companies scrambling to set up employees to work from home. A study in June 2020 by Pricewaterhouse Coopers determined that nearly 70% of office workers were working remotely. Wh......

How to Contend with Oracle’s Many Licensing Policies

Christopher Barnett  Comments (0)
It is common practice for software publishers to incorporate by reference various licensing rules and policies to govern the usage of the publishers’ software products. For example, Microsoft’s volume license agreements (such as MPSAs or Enterprise Agreements) incorp......

Timing is Key for Software Audit Settlements

Keli Johnson Swan  Comments (0)
More than 90 percent of software audits initiated by software publishers or representative entities, such as the Business Software Alliance (“BSA”) and Software & Information Industry Association (“SIIA”), are settled out of court after negotiating a final settle......

Avoid Overpaying for Software Settlements

Keli Johnson Swan  Comments (0)
Most software audits initiated by the software publisher or a third party entity authorized to pursue copyright infringement claims on behalf of the software publishers, such as the BSA| The Software Alliance (“BSA”) or the Software & Industry Information Associa......

Preparing for the Inevitable SPLA Audit

Rob Scott  Comments (0)
If your company uses a Microsoft Service Provider License Agreement (SPLA)—and it probably does if Microsoft considers you to be in the commercial hosting business—you will be audited at some point. Typically, Microsoft SPLA customers are audited once every three yea......

Accurate Inventory Information Crucial to Audit Outcome

Christopher Barnett  Comments (0)
Obvious though it may sound, in almost every software audit the most crucial element contributing to a positive outcome is an accurate inventory of what software is deployed. Unfortunately, far too many businesses faced with an audit end up receiving grossly over-inflated ......

Understanding the Scope of a Software Audit

Keli Johnson Swan  Comments (0)
Software publishers regularly audit their customers to help ensure that the customers are properly licensing their software. Some software publishers conduct audits directly, but many choose to audit through companies such as the BSA| The Software Alliance (“BSA”), or ......

The Art of Negotiating a Software Audit

Rob Scott  Comments (0)
Almost every business today operates with the support of digital tools. One survey put the number of companies investing in digital technologies to transform their business at an astounding 97 percent. Conducting business in this digital age means licensing software from......

Effective Dates in Software Audits are Critically Important

Rob Scott  Comments (0)
Businesses that receive software audit demand letters from auditing entities such as the BSA or SIIA, or from software companies like Autodesk or Microsoft, often contend they cleaned up their network after receipt of the letter and should be released from any further obli......

Key Components of Software Audit Response Policies

Christopher Barnett  Comments (0)
Software audits are significant legal and financial risks for all companies. With more and more software publishers utilizing intrusive audits and other information-gathering exercises as the basis for licensing transactions and – more troublingly – as sources of rev......

How to Conduct a Software Audit

Christopher Barnett  Comments (0)
[caption id="attachment_5534" align="alignnone" width="614"] Fundamentals of Software Audit Data Collection[/caption]   One of the tasks with which Scott & Scott’s clients most commonly request our assistance is how to conduct a software audit. While almost ......

Negotiating a Data Processing Agreement Under GDPR

Stephen F. Pinson  Comments (0)
The General Data Protection Regulation (GDPR) became effective on May 25, 2018. GDPR is the widest sweeping privacy regulation to hit the global market since the 1995 EU Data Protection Directive. GDPR is a regulation that requires businesses to protect the personal data and......

Top Three Tips to Ensure Software Compliance

Keli Johnson Swan  Comments (0)
Companies facing copyright infringement claims from software publishers or their representatives have few options to navigate an audit and resolve the matter out of court. The costly nature of a software audit has prompted companies to take pre-emptive steps to avoid exp......

Attempts to Transfer Microsoft Licenses May be Ineffective

Rob Scott  Comments (0)
Like most software publishers, Microsoft includes terms in its standard license agreements to restrict a licensee’s ability to resell or otherwise assign to another party the right to install or use software. Increasing the level of difficulty for IT groups trying to m......

Unlimited License Agreements for Oracle Products

Julie Machal-Fulks  Comments (0)
Technology departments are continuously looking for ways to reduce costs related to software. Many larger enterprises are considering licensing software products on an enterprise-wide basis. For Oracle products, an unlimited license agreement (“ULA”) approach can be ......

Autodesk Audits: Managing Independent Contractors

Keli Johnson Swan  Comments (0)
Autodesk, Inc. uses a variety of resources to identify potential audit targets. Many of these targets are small architecture or engineering firms that employ independent contractors in lieu of full time employees as CAD operators. A typical Autodesk software audit let......

Regulatory Compliance and Transparency in Artificial Intelligence

Rob Scott  Comments (0)
The concept of transparency in artificial intelligence has been debated extensively.  Transparent AI allows humans to understand the conclusions being drawn from AI algorithms.  Black-Box AI lacks transparency in that the conclusions drawn from algorithms are not expla......

Limitations of Liability in Artificial Intelligence Contracts

Rob Scott  Comments (0)
Limitation of liability provisions place limits on the amounts that the parties would otherwise be able to recover in court.  For example, it is common in technology contracts for both sides to agree to waive the right to recover indirect, consequential, and punitive da......

Article 22 of GDPR and Artificial Intelligence Contracts

Rob Scott  Comments (0)
Europe’s General Data Protection Regulation “GDPR” can play a major role in artificial intelligence projects.  Article 22 of the GDPR provides that data subjects have the right not to be subject to a decision based solely on automated processing, including profili......

How to Resolve an SIIA Audit Followed by a BSA Audit

Keli Johnson Swan  Comments (0)
Sometimes a company receives notices of audits from many publishers or trade associations at the same time. Often this is because multiple agencies have received confidential reports from the same informant. If a current or previous employee contacts both the Software &a......

Treat Audit Demands Like A Litigation Hold Letter

Keli Johnson Swan  Comments (0)
Software publishers are regularly auditing customers to ensure compliance with license agreements, and may initiate audits directly, or through entities such as BSA|The Software Alliance, and the Software & Information Industry Association ("SIIA"). These entities se......

What is a Microsoft SPLA Verified Self-Audit?

Rob Scott  Comments (0)
If you provide commercial hosting services using Microsoft’s Service Provider License Agreement (SPLA), you may become a target of an ever-increasing variety of license audits from Microsoft and its vendors.  The latest flavor of a Microsoft SPLA audit is the verified s......

Autodesk Targets Architects In Software Audits

Keli Johnson Swan  Comments (0)
Autodesk routinely conducts software audits to determine whether businesses have unlicensed copies of its software installed on their computers. Architecture firms typically represent a significant portion of the targets of such audits – many such firms are heavily relia......

GDPR Protection: Better to be Safe than Sorry

Rob Scott  Comments (0)
So far this year alone, about 80 companies have been assessed hefty fines—one as high as $201 million—for violating the requirements of the European Union’s General Data Protection Regulation (GDPR) Act. While most were cited for “insufficient technical and organ......

An Audit by Another Name: IBM’s new IASP Program

Julie Machal-Fulks  Comments (0)
This year, IBM announced that it was going to present certain customers with the opportunity to participate in its new IBM Authorized SAM Partner Services (“IASP”).  In a recent webinar that it co-presented with KPMG, one of its approved IASP partners, IBM described t......

Be Wary of Certain ISV and Embedded Software Agreements

Christopher Barnett  Comments (0)
It is common for software solution providers to use third-party products to support the functionalities those providers have developed for their solutions. For example, a network-monitoring solution may incorporate IBM Cognos functionality, or an accounting solution may in......

Avoid Oracle ULA Termination Risks

Christopher Barnett  Comments (0)
Many software publishers recognize that perpetual licenses should be, true to their name, perpetual, and that unless you violate the terms of the licenses they should remain in effect forever. As the licensee, you may not want to use that Microsoft Office 97 license you ......

Hosting Oracle Software Carries Risks

Christopher Barnett  Comments (0)
The software-as-a-service (SaaS) solution-delivery model is becoming more and more widespread. Developers of all kinds of software solutions – products covering everything from office productivity, design, accounting, CRM, business intelligence and more – increasingl......

Even in The Cloud – Keep an Eye on Software Licensing

Christopher Barnett  Comments (0)
There are many good reasons that businesses often cite in seeking to transition their IT operations to a vendor-delivered Cloud environment. It’s scalable. It’s more reliable and secure than what the business may be able to deliver for itself. It’s (often) cheaper......

Consult with Counsel for SPLA Audits

Rob Scott  Comments (0)
Microsoft’s Services Provider License Agreement (“SPLA”) is a popular licensing framework for businesses delivering hosted or rented software solutions to their customers. However, as with many software license agreements pertaining to resale or other business chan......

Unpleasant Surprises in BSA & SIIA Software Audits

Christopher Barnett  Comments (0)
Many companies who comply with a demand by a software publisher or industry association (such as the BSA or the SIIA) for an internal software audit end up facing significant settlement demands after forwarding their audit materials to the other side. One of the reasons ......