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.
Pirating a freely available, open source solution that was written by
another party and simply had some IP that MSFT may or may not even own would
be hard piracy to battle. There's no loss on MSFT's part. Heck, the
solution provider could have acquired the license themselves (I'm sure
sendmail and other OSS systems and all commercial email providers would have
no trouble sending in the free fax).
While I don't doubt the actual law as you are suggesting, the key question
is what would MSFT really do. Again, since the "license" costs nothing and
is given to all parties without bias, the loss of having a license wouldn't
impact MSFT at all.
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).
Again, the IP argument would hold if they sold the IP. When you give it
away freely, it's pretty hard to defend that you were harmed by a user who
downloaded sendmail and it contained infringing code. It would be hard
enough to prove the the user of the software even knew about it. And the
remedy would be a simple fax. Why would MSFT spend legal dollars after they
have said they want it to be a freely deployed standard?
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).
But this isn't MSFT's product at all. There's no copyright on the code
itself (such as within sendmail) MSFT would not own any of that code. And
right now, MSFT doesn't even have such a patent, so the license is only to
give you permission in case they get the patent.
But this pressure is good because I do believe that MSFT will come up with
something more open. It's in their best interests and there's really
nothing for them to gain since they are giving it away anyway. While smart
(and therefore unlikely to be done by a bunch of IP attorneys at a big
monopoly), they'd simply request the group/organization/company that
DEVELOPS code that uses the IP should acquire the free license and then
allow them to distribute it to all users without further obligation. After
all, that's how ALL OTHER IP is ever handled when it's integrated inside a
computer system. It's rare for the software manufacturer to require each of
its users to acquire separate licenses from a variety of vendors that may
have known IP within their own code.
Harry