B.S.A. Three little letters that can strike fear into the heart of an Agency owner or IT department head.
For the blissfully unfamiliar, the Business Software Alliance (BSA) is an organization that enforces software copyrights for many of the “heavy hitters” of the industry, including, most relevantly for marketing agencies, Adobe and Microsoft.

Software companies engage BSA to find, investigate and resolve software infringement and counterfeiting cases. BSA’s methods of enforcement can include a written request for self-audit of the Agency’s software installations, an unwelcome office visit to inspect your software or hardware, or legal proceedings against companies that BSA has reason to believe are infringing upon BSA member companies’ software copyrights.

Put bluntly, BSA exists to stop the use of illegally downloaded, unlicensed software products. Sometimes the misuse is purposeful, but many times it is unintentional and just the result of poor safeguards or lax enforcement. Either way, once the BSA is involved your software costs will increase dramatically.

How do you get on the radar of the BSA? There are several possible ways; but for closely held independent Agency, three likely scenarios are: the BSA’s target of a particular industry, the BSA’s random targeting of a particular geographic region, or a confidentially provided report of infringing activity (usually by a disgruntled former employee or, sometimes, knowledgeable client).

What should you do if you are contacted by the BSA? Never ignore a communication or request from the BSA. If you remember nothing else from this post, please remember these words. Ignoring the BSA can easily be construed as a sign of bad intent. So, first, have senior Agency management contact BSA to do nothing other than acknowledge the communication and advise that you are investigating and preparing a response. Then, second, immediately contact a lawyer knowledgeable about software copyright claims – preferably someone who had dealt with a BSA investigation before – to assist you with your response. If your first point of contact with the BSA is an in-person visit, your call to legal counsel should be Step One. Your legal counsel can negotiate with the BSA confidentially, and can insist that the terms of any resolution of BSA’s claims be confidential as well.

While compliance with a BSA investigation is technically voluntary, refusal to comply usually provides the BSA little other recourse than to sue the Agency for copyright infringement. Responding to an infringement suit is, of course, absolutely NOT voluntary and is extremely costly.

What are the possible outcomes of a BSA investigation? If the BSA has contacted you informally and in writing, it’s possible to resolve the matter with a relatively low level of business disruption by conducting the requested self audit and paying the necessary fees and fines to get into compliance. I don’t want to minimize this – if you are using a lot of unlicensed or illegally downloaded software (even if Agency management didn’t know about it) – the Agency will have a costly license fine to pay, as well as the legal fees incurred to resolve the situation. You will also have to purchase new software licenses for the products you need to continue to use to run your business, because settling with the BSA does not include the purchase of compliant software. While costly, these fees are less expensive than copyright infringement litigation.

How can the Agency avoid software enforcement issues? The simplest advice to Agency management on this point is PAY ATTENTION to your software licenses and downloads. As basic as this may sound, most software compliance issues are unintentional and can be traced to a lack of monitoring of license expirations, a lack of awareness of employee conduct, or plain old failure to preserve software purchase documentation. Diligent employee training, regular monitoring of company servers and machines for license expirations and matching documentation, and a zero tolerance policy for illegal downloading are valuable prevention tools. And your employees will appreciate the diligence – most of them have no idea of the jeopardy or expense they could cause the Agency by a simple download.