Reprinted with permission from Findlaw.com.
Software piracy certainly is not unheard of in the United States. Indeed, industry groups, such as the Business Software Alliance (BSA), have brought actions against and have negotiated settlements with a variety of companies that have been alleged to have used pirated software. While audits do not always reveal true instances of piracy (sometimes there is smoke but not fire), other times they do.
The BSA now is taking its enforcement efforts to another level, by bringing international actions against Internet offenders. Indeed, the BSA has launched legal action against five alleged software pirates, one in the United Kingdom, another in Austria, two in Germany, and one in the United States as part of a global effort to stem the sale of illegitimate software online.
In the United States, there have been instances when the BSA has been tipped off about pirated software (e.g., the use of more copies of software than licensed) by disgruntled employees of a company. Subsequent investigation and audits determine whether the software whistle-blowers have been accurate in their reports to the BSA.
When it comes to international enforcement, a chief concern arises from consumer complaints about having been duped by low price deals that have led to the receipt of counterfeit or poor quality products. According to research considered by the BSA, 25% of software products purchased directly from online sources, rather than from the vendors, contains malicious code or additional code that very well can adversely impact security and performance.
And when it comes to auction purchases, the research indicates that there is a less than 50% chance of purchasing genuine, licensed software that has not been tampered with. The BSA boasts that in 2006, it shut down online auctions that offered more than 20,000 software products with a total value estimated at $17 million.
As to its recent cases, the defendant in the case in the United Kingdom is alleged to be a Web site operator offering copies of Autodesk software; the defendants in the Austrian and German cases are alleged to have offered Adobe products; and the defendant in the case in the United States is alleged to be an online seller who has been operating a number of Web sites offering copies of Adobe, McAfee, Microsoft and Symantec software.
The BSA right now is attacking just the tip of the iceberg in terms of software piracy overseas – which by some reports is an enormous problem. Query whether these efforts will have a decisive effect and will serve to deter others from pirating software.
Perhaps in the short term the BSA only will reach the specific defendants it targets. However, if it can achieve results internationally that stick, and if it is supported sufficiently by the software industry, it is conceivable that over time the BSA might help to turn back the clock a little bit when it comes to the growing problem of piracy.
To do so, the BSA must pick the right cases, so that it does not stub its toes in going after parties that, at the end of the day, actually did not engage in software piracy.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. The views expressed in this column do not necessarily reflect those of Sinrod's law firm or its individual partners.
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