Many businesses targeted for software audits initiated by the Business Software Alliance (BSA) often make the decision as a result of the audit process to forego the expense and risk associated with using BSA-member software and instead transition to open-source software (OSS) solutions. While OSS may entail some challenges related to hardware and software compatibility, in many cases, those products do not entail any licensing fees, are subject to much less stringent licensing requirements, and may be upgraded at will to the latest versions without the purchase of any support subscriptions or product upgrades. As a result, they present a tempting and cost-effective alternative to other solutions, especially in light of the fact that expensive BSA settlements typically do not include the acquisition of any software licenses that a business may require in order to achieve compliance. However, through the International Intellectual Property Alliance (IIPA) – an IP trade organization of which the BSA and other content-oriented groups like the Motion Picture Association of America and Recording Industry Association of America are members – the BSA appears to be subscribing to the position that the use and endorsement of OSS is the equivalent of software “piracy.”
The IIPA’s position was reflected recently in comments it submitted to influence U.S. trade policy. Each year, the Office of the U.S. Trade Representative (USTR) conducts a review of foreign IP laws – called the Special 301 review – to identify those nations believed to have unacceptably lax copyright policies. Negative treatment in the review can lead to trade sanctions and is intended to exert pressure on foreign nations to adopt more stringent copyright policies. During the review process, the USTR accepts recommendations from interested parties regarding countries they believe should be added to the “blacklist” of poor copyright enforcers. In its 2010 recommendations to the USTR, the IIPA named among the countries to be “watched,” among others, Indonesia, Brazil and India, at least in part, it seems, for endorsing the use of OSS in governmental agency offices. This is in spite of the fact that some nations – Indonesia notable among them – adopted those recommendations in order to curb the use of unlicensed software.
A person could be forgiven for adopting a cynical assessment of the BSA’s motivations in the wake of such an apparent policy endorsement. Under the guise of protecting its members’ valuable copyright interests, the BSA has targeted hundreds of small-to-medium-sized businesses for software audits under the threat of federal court litigation and has labeled many of those businesses “pirates” upon failure to meet the BSA’s unnecessarily strict requirements for proving ownership of software licenses. However, the IIPA’s position with regard to OSS seems to indicate that copyright enforcement may be less of a concern to the BSA than is driving sales of its members’ products.
The BSA has not historically objected to businesses transitioning to OSS in the wake of software audits, but the IIPA’s recommendations to the USTA may be cause for concern. All businesses that have been contacted by the BSA for such audits should consult with counsel to work toward the most reasonable available resolution.
The full text of the IIPA’s recommendations is available here: