Are We All Software Pirates?
BizTech magazine recently featured an interesting piece on the four biggest persistent software piracy myths. As for myth number 1 – Piracy Is Something Other People Do – a BSA spokesman commented that piracy and over deploying software are considered the same. This is quite interesting since most companies would absolutely condemn piracy, whereas over deployment is generally viewed by C-level executives as a perhaps somewhat nasty but excusable mistake. How true is this, and what might it entail?
Unintentional, or incriminating ignorance?
Among many others, Rob Scott from Scott IP Technology Attorneys strongly disagrees with judging over deployment the same as piracy. The emphasis should be on the criterion of malicious counterfeiting and expressly exclude any unintentional over deployment of software. Now would this position hold up in court? If a company buys software licenses but does not undertake any serious effort to manage them and therefore the usage conditions – would that rank as unintentional use? Where does unintentional stop and incriminating ignorance start? Even if you do manage your licences but the staff involved does not possess the in-depth knowledge needed to report periodically and avoid risk – how could such ignorance be viewed as unintentional?
You yourself are responsible
In a software license agreement a number of rights and restrictions are contractually documented as conditions that allow and limit product usage. Whose responsibility is it to manage these conditions? Even in Wikipedia – i.e for everyone to know – it is clearly laid out that a license may define ways under which the copy can be used, but not who is responsible for ensuring that the agreement is not being breached. From most license contracts it is not explicitly clear that the licensee (the end-user) is automatically considered to take responsibility for meeting all contract conditions and clauses. Depending on the nature of the agreement, all licensee’s obligations may be implied by a company official having signed off the document.
Going to court over reasonable care?
A correct view of any license partner’s position starts with a proper understanding of what this type of contract actually is. A software license is a special agreement – unlike purchasing a product for instance – by which the end-user essentially acquires the right to use some piece of software that is owned by another party. It’s like a rent, which for the rentee holds the obligation to take reasonable care of the property. But what exactly does ‘reasonable’ entail . . .? There is surprisingly little jurisprudence on this subject. It would be interesting to launch a court case based on ‘reasonable care’ and I’m sure that plenty of lawyers are willing to plead.
Hire some experts instead!
A much less cumbersome, expensive and far more practical approach would be implementing a sound software license management program and process, focused on risk. Doing license management requires skilled and seasoned people to handle all expert knowledge. My advice would definitely be to hire such experts. Should you nevertheless end up in court then you can at least prove that you did everything reasonable within your power to manage the software you licensed.