The Second Record of the Day Four of the US Visit
(By You Yunting) In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the U.S. IPR system operates. On the morning of the fourth day of the journey, the writer visited the Business Software Association (BSA), which originally was not on the list of places to visit; it was later added on the recommendation of the writer. Despite this, the BSA received us with a chief inspection officer. The following is a record of our discussion carried out on that day. The topic of this post only concerns part of the discussion, and the reader may skip to the last part of this article if it interests you.
According to the introduction of the US representative, the BSA has a history of 20 years and was originally founded by five companies. Now, only two of them are still in the association; namely, Microsoft and Autodesk. The previous members include the well-known software company Lotus. The current members include Microsoft, Apple, Symantec and Oracle. So far, the association has not received any members from China; that being said, they look forward to see the participation of a Chinese company. The main issues the BSA concerns itself with include the following three:
I. IPR Law Enforcement. Mainly, for the enforcement of laws against unlicensed software. In China, they do no file lawsuits against individual users, but focus their legal activity against the use of their software by companies for commercial purposes. Their legal actions are limited only to civil cases or administrative complaints, excluding any sort of criminal investigation. When the author questioned why they do not pursue criminal charges, they simply replied that any sort of criminal action required production of evidence. For example, when a company uses more than 100 copies of Microsoft’s software, but only has purchased 10 copies, in the United States that would be considered a type of criminal behavior and the company could be prosecuted. However, in China, the judicial organs hold different opinions on this matter. They hope the law in China will be amended so that the commercial use of pirated software could also be prosecuted in a court. This would serve as a warning to infringers and vastly reduce the amount of infringement in China.
II. Training Companies. The BSA has developed many software management tools with which a company could receive a clearer awareness of their software’s content, have their software updated properly, or discover if too many licenses have been issued. Also, the association pursues their own software standards that coexist with the ISO standard.
III. Public Policy. Through cooperation with China, they actively participate in China’s law amendments concerning the Patent Law, the Copyright Law and judicial interpretations; furthermore, they put forward their suggestions and detailed opinions for law revisions legislature drafts.
The author’s question is: since the BSA members are mostly traditionally-styled software developers, how do they help members facing challenges from “software as a service (SaaS )” model? The U.S. representatives response is this: the emergence of “SaaS” and cloud computing are both their focus, and they have publicized two reports these issues. The change of software sales models has brought them new legal problems: the main issue related to cloud computing is information security. For example, something like a pirated “cloud” could threaten the security of user’s information. The U.S. party pointed out the information security problem, and they also had different opinions on decisions made by the Chinese government that ruled no important data should be stored in a foreign data center. (Actually, the writer did not catch the specific meaning of the official; it might point to the Chinese government’s demands that foreign computing operators shall set up a data center in China, or it might also mean the Chinese authorities prohibit Chinese cloud operators from setting up data centers in foreign countries or territories.) Cloud computing is by its very nature distributed, and for this reason, because the US government allows its companies to save data in foreign countries, it is no wonder it would advocate the Chinese government to follow suit; otherwise, each country would have its data center, avoiding possible savings in costs and endangering end-user security. In April of last year, the BSA held the Sino-US Cloud Computing Seminar in China.
The writer also asked their opinions related to individual injury suffered by a female lawyer of the BSA in rights protection against infringement by ZQ Game; also, the writer told the US representative that the issue had agitated the Chinese public and particularly enraged lawyers in China, and we are all prepared to offer legal aid to the injured lady. But, rather unexpectedly, both sides involved in the issue immediately reached a settlement. However, the writer believes, even though the compensation is high enough, no excuse or forgiveness could be spared to the attacker for no punishment has laid on him. The issue will certainly raise its head again. And as expected, we saw the reoccurrence of the same issue. According to the opinions of the US representative, rights protection and personal injury are actually two different legal issues, and accommodation is not within their power; that being said, they contacted the local lawyers but the settlement was the personal choice of the female lawyer. The nevertheless representative also expressed his anger over the issue.
The author’s associates also asked questions on how the association coordinates cooperation among its members. The answer is generally that the companies demand cooperation themselves, and when the infringement involves more than two companies, the association would gets involved. At the same time, they also participate in negotiations as representatives of the industry. Considering the different resources spread among the regions of rights protection lawyers, the association helps its members in sharing whatever resources may be available.
The co-visitors also raised questions regarding how a software company discovers infringing companies so easily, and whether any “back doors” exist in member software. The US representatives replied that according to China’s Civil Procedure law and Copyright Law, the companies have the power to collect evidence to be used in a civil action, and current software protection measures help them discover piracy. According to their understanding, its actions are legal.
Finally, the author asked a question about mobile networks. At present, there are many pirated applications in use on mobile networks. Apple is a member of the BSA; have they made any requests for rights protection? They responded that they had not started any large-scale rights protection actions against piracy on the iOS platform. Despite Apple being a member of the association, they have limited resources. Also, piracy is mostly conducted by individuals, and rarely are companies involved in it (apparently the receiver is not familiar with that is happening in China). In addition, questions concerning mobile network are too new, so they are still studying the issue.
In closing, when filing notes of the meetings, the author found a lot of it to be incomplete and inaccurate. He decided to put them on our website mainly to share with the readers, and any opinions or corrections are warmly welcomed. Since I’m not willing to share names or details regarding official positions of the people I’ve had discussions with without their agreement or permission, I humbly request forgiveness from the readers.