Software licensing lawyer shares audit survival tips (filling out the template)!
When you get the letter asking your client to engage in a corporate wide voluntary self-audit of your companies software assets (ex. from the BSA, or Autodesk), your first thought will probably be “I never win anything what are the odds our company gets singled out for this.” Some of the other common questions that come up when you first receive the audit letter is “how did they find out about us.” Still another common response is “will there be a software raid on my business.” One of the less common questions is “what does the audit worksheet look like since it appears we will have to fill one out.” This blog helps you understand this important concept a little bit better. If you have particular questions, contact us by calling (877) 276-5084. We offer free initial consultations to discuss your case. We also offer low PREDICTABLE flat rate fees to help make it a “no-brainer” to hire intellectual property counsel to represent your business needs. Keep in mind, they have lawyers on their end and it thus makes sense to have legal protection on your side. We have helped many other companies survive audits both large and small, regional and international.
What does the software audit spreadsheet look like?
Click here to download a sample excel software audit worksheet that resembles something similar to what you might see if your business is facing a licensing audit. While the fields (rows and columns may vary, this should give you some general ideas of what you can expect.
As you can tell, this document has a lot of different fields to complete, and agreeing to submit to the audit process can consumer valuable company time and resources, and can also inadvertently “alert” other employees that one of the big software publishers has your company under investigation. The spreadsheet is basically wanting to know how your IT infrastructure is headed up. How many PC’s and MACs does your company have? How many laptops. What software products do you have installed? What edition of each software are you running? Do you have dated proofs of purchase to back up each install you are using? If you are under a Microsoft audit, they may want to know how many “CAL licenses” your organization has. Do you have the proper CAL’s (user or device) for each person who is accessing critical applications such as Windows server or exchange. The larger your organization, the more extensive your audit worksheet will be and likely the more time and energy you will have to put into it.
Are there programs that can help me do our own internal audit?
Yes. There are programs such as LANsweeper that can help you automate the spreadsheet and take some of the hassle out of it. There are also other tools such as Network Inventory Advisor. Another possible option is Xassets. Note we do not endorse any particular company or their products. This is just to provide you with an example. These types of companies (along with third party software consultants) can help you with the internal auditing and can get their program installed in your environment in order to extract the data you need to populate the template.
From there, obtaining all of the proofs of purchases will be up to your licensing team. Hopefully you have been saving your receipts from approved software vendors (such as Microsoft certified partners) for some time so that it is easy to match up the number of installs with clear evidence of payment. This is what organizations like the Business Software Alliance want to see before they will find you to be in compliance. If you are short they will cite case law to us indicating that the Burden of Proof on compliance with the terms of their end-user licensing agreements is up to you! If you cannot show your dated proofs then we start talking about your license ownership position and terms such as the following normally start to surface:
- Is your client a software pirate?
- We believe your client is willfully infringing our copyrighted software
- Does your client realize we have the power to conduct a software raid?
- Are the officer and directors of the company aware of their potential liability for enjoying the benefits of having free unlicensed software?
- From time to time we have seen criminal prosecutors take an interest in cases of infringement that are widespread.
These are some of tough talk expressions that might arise in any case. As we have said many times in other blogs, videos, and podcasts sure, you can represent yourself, but if you are not familiar in this area, you could be walking into a trap laid by a skilled and experienced intellectual property lawyer for the software companies or their trade associations and once your infringement position is “locked-in” you might as well get out the checkbook and call your financing company because you will be back-pedaling from there.
Top 5 Frequently asked questions
- Will the software publishers trust my audit results? [Normally yes, unless they have reason to believe you are lying]. One tip is to be as accurate as possible as you will probably want to use the process to turn a negative into a positive and get a handle on your licensing. This is part of a good SAM (software asset management) program every company should have along with adopting a software code of ethics.
- Will I have to pay for unlicensed software? [Yes, this will depend on things such as how widespread the infringement is and other factors. Here is a basic software infringement damages guide to review].
- How long will the process take? [Once you fill out and return the spreadsheet, you can expect the back and forth negotiation process to take several weeks to several months]
- Do I have to hire legal counsel? [No you do not. But just keep in mind they have legal counsel on their team, and some of these IP lawyers are VERY aggressive and I compare them to collection attorneys. Not much fine to be dealing with on a continuous basis. Stick to what you do best and let us handle the negotiation process.
- Will this be held confidential? [That depends if you just rush in and start making phone calls to the software company and they are taping the phone calls you might find you have a problem. Likewise, if you do not understand FRE 408 confidentiality agreements you will also be at a major disadvantage.
For more detailed information check out our main information resource page or simply contact us to speak with a friendly assistant.
Contact a software compliance attorney
When you receive the “love letter” from the SIIA, BSA, IBM, Autodesk, Adobe or some other publisher, it makes sense to contact legal counsel so that you know your auditing rights. It is extremely important that you understand your legal risk and exposure, need to try to maintain confidentiality, and to discuss how we can help protect your rights through the auditing process. As noted above, we have a strong track record of helping our clients navigate the audit process and we offer flat rate legal fees where you do not get double-billed or triple-billed by a law firm that puts three attorneys on your case and starts billing you (often charging for paper clips, staples and other items that we just find to be ridiculous). As we like to say “this is not your daddy’s law firm!” Call us at (877) 276-5084 to speak with a software compliance lawyer.
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