A. Companies targeted for audit are not required to cooperate with the trade associations or publishers, but resolution without litigation is highly unlikely without an agreement from the target company to participate in a voluntary audit.
A. In light of the highly specialized issues that arise in software audits, unrepresented or underrepresented clients generally make a series of common mistakes that jeopardize their legal position.
A. The most common mistake we encounter in software audits is the failure to compile and produce accurate installation information.
A. Here are the vendors we encounter the most in our practice: Microsoft, Autodesk, Adobe, IBM, Oracle, SAP, and Borland.
A. A request for a software audit is a legal matter that should be handled by your company’s inside or outside legal counsel.
A. Software audit investigations generally involve:
- Automated discovery of the relevant software products
- License entitlement review
- Technical use case review for each product
- Application of the licensing rules to the facts
A. All software audits involve the gathering and validation of information regarding the use of computer software. In a self-audit the customer conducts an investigation and represents to the publisher that it is true and correct. In publisher audits, a third-party conducts an audit and the customer invariable challenges the findings. The self-audit is more efficient and is fairest to both sides.
- Rule 408 Protections for Audit Materials
- Access to Information
- Time-frames for information sharing
- Audit Deliverables
- True-Up Provisions for any Compliance Findings
A. Yes, in certain instances, it is possible to gauge the amount in controversy before an internal investigation is completed. Factors we consider include: recent settlements with the same vendor on a similar issue; specific product and deployment counts; the strengths and weaknesses of the legal points on both sides.
A. You should respond by developing an analysis of what your company would owe assuming you would prevail on all legal arguments and offer that number as your initial counter-offer.
A. We are usually able to negotiate an out-of-court resolution to most software audit disputes. Occasionally, there are cases that do not settle and one side or the other files litigation in a federal district court.
A. Here is what you should consider before filing litigation in a software audit:
- Amount in controversy
- Switching costs
- Probability of success
- Impact on internal resources
- Legal fees and expenses