Many companies who comply with a demand by a software publisher or industry association (such as the BSA or the SIIA) for an internal software audit end up facing significant settlement demands after forwarding their audit materials to the other side. One of the reasons the settlement demands often are so high is the fact that the auditing entities frequently base their demands, in part, on the “unbundled” price of software suites. Thus, where a company may expect to pay a fine based on the MSRP of, for example, one undocumented installation Microsoft Office Professional 2007 ($679), it likely will end up receiving a settlement demand based on the combined MSRPs of each of the components of that undocumented suite: Word ($229), Excel ($229), PowerPoint ($229), Outlook ($110), Publisher ($169), and Access ($229), all totaling $1195. In a typical case these difference add tens of thousands of dollars to the amount in controversy.
Another way in which publishers or auditing entities raise the amount in controversy in software audits is the attempt to assess separate “fines” for each allegedly infringing installation of a software product. Thus, a company reporting just ten undocumented installations of Office Professional 2007, with no other licensing shortfalls, may receive a settlement offer based on the combined, “unbundled” MSRPs of the component products totaling just shy of $12,000. Moreover, that is before the auditing entity applies any multipliers to that figure (yet another common tactic) or makes any assessments for their claimed legal fees, both of which factors may drive the opening settlement offer in the above example to $40,000 or more.
It is not difficult to see how owners of small to medium businesses who think that they have a handle on their financial exposure in a software audit matter often end up with truly unpleasant surprises after submitting audit materials to the BSA or SIIA that they may have believed would be negotiating on a more equitable basis.
If your business has been accused of software “piracy” and is responding to a software audit demand either from a software publisher like Autodesk or from the BSA or the SIIA, an experienced attorney can give you visibility into the process and help you avoid unpleasant surprises.