Disguised Software Audit Clauses

Keli Johnson Swan  Comments (0)
Agreements often contain clauses allowing the parties to review books and records, “Books and Records” clauses. These are often boilerplate clauses included in agreements without much consideration from the contracting parties. When a Books and Records clause is used......

Defending SPLA Audits: Critical First Steps

Christopher Barnett  Comments (0)
Many businesses contact Scott & Scott, LLP regarding Services Provider License Agreement (SPLA) audits after providing extensive information to Microsoft’s auditors and receiving compliance demands that would be ruinous for their bottom lines, if paid in full. At t......

Sweat the Small Stuff When Licensing Oracle Software

Christopher Barnett  Comments (0)
Enterprise-level software solutions often entail complex licensing challenges. Many of the thorniest questions often center on how to license software in virtualized environments, especially if the goal is to use something less than the full processing power of the hosting......

Costly Software Audit Mistakes

Keli Johnson Swan  Comments (0)
BSA | The Software Alliance (BSA) and the Software & Information Industry Association (SIIA) are organizations that represent software publishers seeking to enforce the copyrights in the products they publish.  In furtherance of this goal, these entities routinely send ......

Compliance Remains a Concern Even in the Cloud

Christopher Barnett  Comments (0)
For many businesses, the allure of moving their software platforms, applications and/or databases to The Cloud lies substantially in the promise of ridding themselves of license-compliance concerns. The pitfalls of a Cloud-based architecture are worth accepting for many ......

License Ambiguities in Software Audits

Rob Scott  Comments (0)
Without a contractual provision to the contrary, ambiguous terms in a software license will be construed against the software publisher. Provided that there are no other business factors that would make litigation unwise, an ambiguous license agreement is the situation m......

Navigating Microsoft License Verification Audits

Keli Johnson Swan  Comments (0)
Microsoft, like other software publishers, routinely audits customers to help ensure that it is protecting the value of its intellectual property.  Microsoft verifies its customers’ compliance using several methods. Contact Us Microsoft License Verification ......

IBM’s Standard Audit Clause is a Time Bomb

Christopher Barnett  Comments (0)
It is standard practice for software vendors to include clauses in their license agreements giving the vendors the right to invoke audits or some other mechanisms to ensure that the licensed products are used in a way that is consistent with agreed licensing restrictions......

Be Wary of Audit Tools Promoted by Software Auditors

Christopher Barnett  Comments (0)
Most companies with more than a handful of computers in their IT environments rely on the results of network-inventory tools to gather the deployment data needed for accurate software audits. Without the tools, a business would be required to assign valuable resources to......

Factors Affecting Potential Exposure in Software Audits

Christopher Barnett  Comments (0)
Most businesses that try to plan for software audits and to estimate the potential exposure they could incur in the event of those audits know that the primary cost components of that exposure typically are the prices associated with any licenses they may have failed to ......

Microsoft’s Auditors Are Not Infallible

Christopher Barnett  Comments (0)
Microsoft licensing is a complex, multi-faceted undertaking, with different rules and license metrics applying to different products. In the context of software audits initiated by Microsoft, it is important to keep in mind the fact that the auditors hired to perform tho......

Avoid Pitfalls When Deploying ILMT for IBM Software

Christopher Barnett  Comments (0)
IBM software is expensive. In some cases, very expensive. While this may represent a necessary cost of doing business for many companies with mission-critical software solutions developed on or using IBM applications, all IBM customers clearly are incentivized to maximiz......

Be Wary of Requests for Mystery Data

Christopher Barnett  Comments (0)
Software auditors such as KPMG, Deloitte and PriceWaterhouseCoopers like to have things their way. It’s an understandable impulse – with likely hundreds of audits pending at any one time, the natural inclination is to standardize the process around a single set of tool......

SQL Server Licensing Challenges in Hosting Environments

Christopher Barnett  Comments (0)
Microsoft does not make licensing SQL Server easy, either under SPLA or under volume licensing agreements. Here are the three most significant problems that our clients face when trying to license that product: Four-Core Minimum – Microsoft allows SQL Server to be lic......

How to respond to a VMware Audit

Keli Johnson Swan  Comments (0)
Managing a complex IT environment very challenging, even before becoming involved in an external software audit from a software publisher or a third-party auditing entity. Businesses facing VMWare audits in particular should be prepared to take a number of steps to ensure ......

Software Audits: Proving Ownership of Software Licenses

Keli Johnson Swan  Comments (0)
Often the single most arduous and time-consuming task facing companies who are the subject of software audits is collecting entitlement information to prove ownership of licenses for software installed on its networks. Once a company receives an official audit letter from ......

Avoid Mixed-Mode Microsoft Licensing Whenever Possible

Christopher Barnett  Comments (0)
Most Microsoft software products – especially server products – can be licensed under multiple different models and metrics. SQL Server probably is the best example of a product that presents companies with multiple decision layers when analyzing new use cases: • C......

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 “grey 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 – ......

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......

When to Buy vs. Uninstall in Software Audits

Rob Scott  Comments (0)
One of the most common mistakes I encounter in software audits is what I call the post-effective date software buying spree. The buying spree occurs in response to a letter from a publisher or publisher's attorneys requesting a self audit. Many clients are discouraged to......

Litigation Risks of Ignoring Software Audits

Keli Johnson Swan  Comments (0)
Software audits are a means for software publishers to enforce and regulate use of their copyrighted software, and publishers regularly outsource enforcement of their copyrights to law firms or entities such as the BSA| The Software Alliance (“BSA”) or Software &......

Adobe Audit Demands Can Be Burdensome

Christopher Barnett  Comments (0)
Businesses contacted by Adobe for software audits can be lulled into thinking that those investigations entail less exposure risk than audits by other publishers, like Microsoft or IBM. Adobe audits typically are conducted directly by Adobe representatives, rather than b......

Trust, But Verify with Third-Party Software Vendors

Christopher Barnett  Comments (0)
Enterprise-level software solutions often are very complex products requiring a level of expertise that may be outside the experience or skill sets of generalist IT teams. Many businesses therefore rely on the services of independent software vendors and consultants to eva......

Managing Risks in the Software Audit Process

Rob Scott  Comments (0)
It has been said that software is the new oil. It fuels the information revolution. And in this metaphor, software audits are the meters that measure the flow—and extract maximum revenue for software makers. The auditors arrive on your company doorstep to “true up” y......

11 Secrets to Defending BSA | The Software Alliance Audits

Rob Scott  Comments (0)
Don't be in the dark on how to prepare and respond to software audits. An increasing number of companies face software audits initiated by software publishers and their trade associations, such as BSA | The Software Alliance and the Software & Information Industry Ass......

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 years......

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......