Anger over call to fine unlicensed software users

The BSA wants stronger penalties for businesses using unauthorised software, but a leading IT professionals' organisation has called the demands 'absurd'
Written by Tom Espiner, Contributor

The Business Software Alliance (BSA) has called for a change in the law so that harsher fines can be imposed for unlicensed software use.

The BSA, which represents the interests of software vendors, is pushing for judges to be given powers to impose fines to punish offenders in civil cases, rather than merely awarding damages to redress the value of unpaid licences.

"In the UK damages are awarded to compensate for financial loss suffered. The problem in software is that is usually the licence fee only. As soon as an action starts against a company, they buy licences and escape the consequences," said Graham Arthur, BSA's UK counsel.

The BSA wants civil courts in intellectual property cases to have an extra power to award punitive damages, taking into account all the circumstances of unauthorised software use.

"If an organisation has several hundred copies [of software] without licences for years, it should be penalised in court," Arthur told ZDNet UK. "The absence of an effective deterrent for businesses contributes to the piracy levels our members suffer," said Arthur.

Although punitive damages can be awarded for criminal copyright infringement, the BSA prefers to pursue its quarry through the civil courts.

"There's limited public interest in dragging chief executives before magistrates' courts," said Arthur.

The BSA accused businesses of not taking software compliance seriously, and said many had a "cavalier view" towards software licensing.

"Some businesses weigh up whether they pay for a licence now. Most businesses would rather defer payment. Software compliance is not taken seriously [by companies] — 27 percent of business software is unlicensed. There has to be an enforcement message," said Arthur.

But leading business representatives have heavily criticised the BSA's stance.

The Corporate IT Forum (TIF), an organisation that encourages dialogue between IT professionals and includes the IT managers of some of the world's largest companies, said that businesses would be alienated by the BSA's approach.

"The assumption is that an organisation is guilty until proven innocent. This seriously insults the professionalism of large organisations and individuals, and their endeavours to operate within contractual terms," said David Roberts, chief executive of TIF.

"If the BSA presses on with this it will alienate even more businesses [than it already has done]. To suggest that organisations do not take licensing seriously is absurd," Roberts told ZDNet UK.

Roberts also said that businesses would be insulted by being labelled "pirates".

"It seems wholly inappropriate to tar all organisations with a dirty brush, which implies they are using incorrectly licensed software. Piracy is the fabrication of software — businesses don't do that," Roberts added.

The BSA told ZDNet UK it will seek to influence legislation through dialogue with policy makers and stakeholders. The organisation has made a submission to the independent Gowers review on intellectual property legislation, which is due to report in the autumn.

Roberts said that it was not appropriate for the BSA — whose members include Adobe, Apple, Cisco, Dell, HP, IBM, Intel, McAfee, Microsoft and SAP — to seek to change legislation. The large companies that make software should not be the ones to police the use of that software, he argued.

"For the BSA to suggest laws should be changed because of suppliers' concerns about organisations misusing software seems wholly inappropriate," said Roberts.

"These suppliers cannot create their own police force, and would be setting an enormous precedent if a special law came about to represent their vested interests," Roberts added.

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