Software Piracy & Infringement Law – The Whistleblower!

Introduction

One thing that tips off software publishers regarding the topic of their software being infringed is the word from the insider.  Tipsters can be many different types of persons:

1.  Current employees

2.  Ex-employees (especially those recently fired)

3.  Contractors

4.  Temporary workers

5.  Interns (both foreign and domestic)

These are some of the main types of informants.  Many informants will respond to a “reward” for reporting software piracy.  As a software publisher, you should consider having one and publicizing this on social media.  Our firm can help you draft a report piracy reward and help you police your software in the marketplace and help protect against infringement.

For those companies responding to software audit demand letters, understanding the role of the informant and the issue of “whistleblower protection” is crucial to the negotiation process of your case.  Because informants come in all “shapes and sizes” so to speak, the issue of the information needs to be closely examined.  We wrote a blog about whether or not a software informant can be sued.  If your company is facing a compliance audit, make sure to check out this valuable checklist of things to consider when faced with an BSA or SIIA audit.

California whistleblower law

While our law firm handles federal copyright infringement cases nationwide, this blog will focus on California Whistleblower law, what it says and how it works.  Check the laws of your state to see what the laws are in your jurisdiction.

Under California Labor Code section 1102.5:

“It is the public policy of the State of California to encourage employees to notify an appropriate government or law enforcement agency, person with authority over the employee, or another employee with authority to investigate, discover, or correct the violation or noncompliance, and to provide information to and testify before a public body conducting an investigation, hearing or inquiry, when they have reason to believe their employer is violating a state or federal statute (ex. U.S. copyright law), or violating or not complying with a local, state or federal rule or regulation.”

Interestingly, this means if you report copyright piracy to the California Attorney General, you might receive whistleblower protection (i.e. the AG is a governmental agency).  In fact, here is a clip for their website:

“Since 2000, the IC3 has received complaints crossing the spectrum of cyber crime matters, to include online fraud in its many forms including Intellectual Property Rights (IPR) matters, Computer Intrusions (hacking), Economic Espionage (Theft of Trade Secrets), Online Extortion, International Money Laundering, Identity Theft, and a growing list of Internet facilitated crimes. It has become increasingly evident that, regardless of the label placed on a cyber crime matter, the potential for it to overlap with another referred matter is substantial. Therefore, the IC3, formerly known as the Internet Fraud Complaint Center (Internet Fraud Complaint Center), was renamed in October 2003 to better reflect the broad character of such matters having an Internet, or cyber, nexus referred to the IC3, and to minimize the need for one to distinguish “Internet Fraud” from other potentially overlapping cyber crimes.”

The whistleblower law further states (this part according to a website from the California Industrial Relations Department, the protections are afforded to whistleblowers

1. An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower.

2. An employer may not retaliate against an employee who is a whistleblower.

3. An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

4. An employer may not retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.

So as you can see, where a person reports a software pirate to law enforcement or the government, certain protections arise.  That being said, we have talked in other important videos about BSA and SIIA and how they are NOT law enforcement and not a wing of the government.  If you missed our videos you should watch these two.

BSA software trade association explained

SIIA software information industry association explained

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Following up on our conversation then, the question remains then, if these are PRIVATE software trade associations, then how can they claim their informants are PROTECTED by the whistleblower laws?  I have had several software lawyers tell me in phone and email negotiations that they have a “legal right” NOT to disclose the identity of the informant. When I ask for the legal citation I usually get the same blank response.  No case law, no citation.  I am not saying the case law does not exist, I am only saying I have not seen it.

Piracy Reporting Resources

1.  This article discusses how rewards for software whistleblowers can reach $5,000 to one million dollars.  The incentivizes current and ex-employees to report unauthorized software installations and usage is therefore very high.
2. California whistleblower statute
3. Confidentiality of software informants – BSA (note their claim at the bottom of the page which notes that YOUR NAME WILL NEVER BE REVEALED.
4. SIIA piracy form and confidentiality notice (note that ALL SOURCES will be kept STRICTLY CONFIDENTIAL)
5. BSA rewards software whistleblowers
6. ABA article on software thieves and police

Contact a copyright & software infringement lawyer

Our law firm can help you if your business believes its software is being infringed.  We can help you seek money damages for willful copyright infringement. These types of cases we may be able to take on a full or partial contingency fee basis.  We can also help companies that have received a letter demanding that they submit to a business software audit.  This includes letters you might have received from either the BSA, SIIA or other software publishers such as Adobe, IBM, Rosetta Stone, Autodesk, Minitab, Bentley Software, Parametric and others.  Call us at (877) 276-5084 for a free initial consultation.  We offer affordable flat rate fees that seek to make a decision to hire copyright counsel an easy one.  When it comes to protecting the copyrights of your company or defending your reputation, we are here to help.