Reference no: EM13823594

Summary of case

The following stories cover the use of unlicenced software, or the contravention of a licencing agreement. None of the organisations mentioned are members of the Business Software Association of Australia (BSAA), although one is associated with the US parent organisation.

1. A reseller sells "additional user" software licences to a client for a project, but installation will be delayed for some months, so third-party software licences are not acquired from the supplier immediately. When the software is eventually "supplied" to the end-user client, no CDs or licence keys are required. At a subsequent date it is "rediscovered" that the additional licences were never purchased from the supplier, and moves are made to acquire these. The Manager stops the Purchase Order being raised, wanting assurances that the licences were not purchased. Documentation is produced to show that licences were sold, these licences were never purchased from the supplier, and that the client has the additional licences. The Manager claims to "want to confirm other paperwork and negotiate a price with the supplier", but there is doubt that this is a genuine response. Perhaps there is no intention to purchase the licences from the supplier in the hope that the situation is not discovered. After a week, the paperwork seems to be back in the file to be forgotten again.

2. A client acquires "additional user" software licences from a distributor under a special licence agreement that varies from the normal end-user licence agreement. This variation allows the same licence keys to be reused on multiple installations. The Distributor warrants that it is authorised to make these variations to the licence agreement. The details of the arrangement with the supplier that authorised this are not available, but when it has been discussed, "it's all confidential" is the stock answer. The client is invoiced for the additional licences, but in one case a note on the file and another verbal advice to staff by the Manager says "do not order on supplier". It is possible but unlikely that the arrangement with the supplier allows the distributor to make unlimited sales to its clients without further payment to the supplier. Subsequent to this, the supplier makes a change to introduce an "unlimited user" licence for the latest version that, if purchased, and the client were to upgrade to it, would regularise the transaction. Would such a changed event and/or the passage of time be sufficient to regularise the transaction?

3. A distributor, that may or may not have a current and valid reseller agreement, uses "demo" or "not for resale" software in its day-to-day operations.

4. An end user, in a system failure and recovery situation, allows the operating system and firewall software licensed to another company, to be installed to "get the system back up". It is not clear if there is intention to subsequently license the software, or if it will become an "administrative oversight". What is a reasonable time to regularise such use, and would it then become software piracy after that time?

5. An end user licenses utility software from a small supplier by internet download, and receives a licence key for one user. The licence agreement provides:

This copy of xxxxxxxx may either be used by a single person who uses the software personally on one or more computers, or installed on a single workstation used non-simultaneously by multiple people, but not both. This is not a concurrent user licence.

1.2.1 Public Interest

f) respect the intellectual property of others;

1.2.3 Honesty

b) not knowingly mislead a client or potential client as to the suitability of a product or service;

c) distinguish between your professional and personal opinions and advice;

e) qualify professional opinions which you know are based on limited knowledge or experience;

1.2.4 Competence

a) endeavour to provide products and services which match the operational and financial needs of your stakeholders;

g) respect, and seek when necessary, the professional expertise of colleagues in their areas of competence.

1.2.6 Professionalism

b) take appropriate action against members who engage in behaviour contrary to this Code;

e) neither require, nor attempt to influence, any person to take any action which would involve a breach of this Code;

i) have pride in your profession, and protect and promote professionalism and trustworthiness in ICT.