Nobody ever says why MSFT would prosecute someone who didn't have the
license. In court, it would be pointed out:
* MSFT does not charge anything for the license, so its damages would
be
non-existent
* MSFT gives the technology away freely to those who send in a fax
* MSFT clearly intended it to be royalty free as it was given over to
an
international standards body
So in court they'd have to show why a particular user who hadn't sent
in a
fax should be prosecuted? They would have to show harm done to them.
This is completely incorrect. This would be true for a breach of
contract case (or also a tort case), but not here. In the case of
someone taking or duplicating something without a license, it's piracy.
And there are statutory damages available for both piracy and
malactions against intellectual property (in fact the latter is
precisely on what our "register your domain for trademark protection to
sue spoofers" service is founded - showing actual damage in these cases
can be difficult - which is precisely why there are statutory damages
available).
Even if they did have to show damages, it would be easily done by the
loss of ability to track who is using their product, and, by extension
then, who may be diluting it by altering it and still distributing it
as a "Microsoft product" (and if not as a "Microsoft product", then we
get to areas of infringement).
Anne
Anne P. Mitchell, Esq.
President/CEO
Institute for Spam and Internet Public Policy
Professor of Law, Lincoln Law School of SJ
Committee Member, Asilomar Microcomputer Workshop