The software protection racket, Part 2

* The BSA bets you a huge fine you can't prove your software is legal (to their satisfaction)

Let's get right to the meat of the Business Software Alliance vs. User debate: is your software legal? In my last column I mentioned some of the things you and I would consider proof that we acquired our software legally, such as having the original disks, packing material, and paper or folder with the Registration Key. Answer from the BSA: none of that proves you own your software.

Let's get right to the meat of the Business Software Alliance vs. User debate: is your software legal? In my last column I mentioned some of the things you and I would consider proof that we acquired our software legally, such as having the original disks, packing material, and paper or folder with the Registration Key. Answer from the BSA: none of that proves you own your software.

How can that be? I asked Jenny Blank, the BSA's Director of Enforcement. If I have the original disks and packing material, is that legal? "No, because you can go buy that anytime," says Blank. The concern is that you would run out and buy software after getting the BSA letter accusing you of pirating said software.

Personally, I think that's a crappy answer. If you were using illegal software and you ran out and purchased the same amount of software legally, wouldn't that solve the piracy problem? Yes, but not for the BSA, because the publisher would get its money but the BSA wouldn’t be able to collect its fines (the BSA keeps all the fine money, so publishers don't see a penny of what users pay in fines).

The BSA says on its Web site you should keep all original disks, documentation, and licenses of any kind for all your software. But do they accept that? Not according to Rob Scott, attorney with Scott & Scott LLP.

"They only accept invoices," says Scott. And those invoices have to meet exact standards the BSA doesn’t provide on its Web site. For instance, the name in the Sold To spot must be the exact company name, the invoice must be dated, the product listed, and the version and the amount paid stated.

"The BSA will not accept any other proof," says Scott. "We've offered sworn testimony with details about when they bought the software, who they bought it from, and other details, but the BSA won't accept anything but a dated invoice."

Keep your software invoices in a fire proof safe and put copies in your bank deposit box, because that's your only protection. But it gets worse, because the name on the invoice matters a great deal. What if you buy some software on eBay? You happily put your original disks and packing materials on the shelf and save your invoice five different places just to be safe. You're in the clear, right?

"The BSA universally disallows all invoices from eBay," says Scott, "because according to them the software is counterfeit." Even when a legal dealer sells off excess inventory on eBay, a common practice, you're out of luck. And I expect to see many legal copies of Microsoft Office 2003 go on eBay when Office 2007 starts shipping, so be careful.

Buying legal software from a company in bankruptcy? Scott had a client who did that later get audited, and "the BSA disallowed this." Records from bankrupt companies tend not to be too great, and that will cost you in an audit.

The BSA has completely eliminated one of your consumer rights to resell what you no longer want. Tired of Oracle and want to switch to MySQL? You can't legally sell your Oracle software. Dissolving your engineering practice? You can't legally sell your AutoDesk software, even if you have your original invoice, packing materials, and every security lock dongle each active PC's serial port or USB port. OK, you can legally sell the software, but the BSA will hammer the buyer during an audit and call it software piracy.

If the BSA prevails with its attacks on software users, the only way you'll be able to use commercial software is to re-license every bit of software after buying it from another user. More disgusting, you might have to do that after merging with another company. Scott has had cases where a subsidiary bought retail software in the name of the parent holding company, and the BSA called that software piracy.

Buy a laptop with installed software lately? Scott bought a Lenovo ThinkPad and the invoice didn't mention the software. Scott demanded a new invoice listing the software so he'd be clear in a BSA audit. Even though the laptop package from Lenovo mentioned the software, the laptop had the holographic Certificate of Authority, and the package included original CDs from Microsoft, the software was NOT legal according to BSA rulings from previous software audits Scott has defended.

That's just stupid, illogical and bad for small businesses everywhere. Yet that's the standard operating procedure for the BSA.

Next time, I'll outline the obfuscations and downright deceptive statements by the BSA (now officially known here as the Bully Software Alliance).

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