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Several software products make statements about possible prosecution, for example Microsoft Office:

copyright notice from Microsoft Word for Microsoft 365

copyright notice from Microsoft Visual Basic for Applications

Unauthorized reproduction or distribution of this program, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.

How close is such a statement corresponding with the reality?

They claim that certain actions will be prosecuted (instead of may be prosecuted), what appears to imply they will surely start the prosecution.

...to the maximum extent possible under the law... – this appears to imply that the actions taken on their side will reach to the maximum extent they are able to achieve.

Based on the language used, both points seems to sound almost like obligations from company side.

Isn't this language misleading? For example, for proven single piracy act on single $400 software package, will the company surely start prosecution and will work on reaching "maximum extent possible under the law"? Given the damage, such an extensive action could appear cost-unreasonable for the copyright owner (except of possible publicity effect) and my question is why such a strong wording is used? Is it realistic? Or is it a part of law traditions? Or what else has to be noted there?

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    "Will" is merely a statement of intent, doesn't imply any obligation to follow through. Sep 29 at 16:42
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    @MichaelHall yes, “will” does not mean “shall”
    – Dale M
    Sep 29 at 22:04
  • @DaleM – so "shall" typically represents unconditional action which is more binding than "will"?
    – miroxlav
    Sep 30 at 0:22
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    @miroxlav "will" is a statement of intent; "shall" is a binding commitment. In common usage will means both but in contract documents, the distinction remains.
    – Dale M
    Sep 30 at 1:46
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    Not just in contracts, but also formal specifications, which I read a lot of. Even sometimes they manage to come up with a three-way distinction between "will," "shall," and "must."
    – Andrew Ray
    Sep 30 at 20:08

2 Answers 2

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How close is such a statement corresponding with the reality?

Legally, such language is a meaningless statement of future intent that at best makes clear that the person making the statement isn't waiving any of their legal rights.

Certainly, no infringer would have standing to sue if they failed to do so. Whether a joint venture member or foreign reseller could sue the company for failing to enforce its IP rights is another question that presents itself very differently and depends upon much more than what the warning labels state, such as the language in the joint partnership or reseller's agreement with the copyright owner.

Also, in criminal copyright violation cases, even if the copyright owner asks for the maximum possible consequences, the U.S. Justice Department is under no obligation whatsoever to go along with that request. Likewise, a judge has no obligation to impose the maximum penalty allowed by law following a criminal conviction, even if the copyright owner and the U.S. Justice Department both request a maximum sentence for someone who pleas guilty or is convicted of the offense following a trial.

In practice, something like 98% of federal criminal cases, and a similar percentage of federal civil cases, result in agreed resolutions which result in less severe penalties than the maximum penalties allowed by law. This happens as a result of a mutual agreement to resolve the case with a guilty plea, or a settlement agreement in a civil case, or both.

Also, in practice, none of these companies, nor the federal government's prosecutors, have the resources to press anything but the most clear and serious copyright violation cases, and cases that are valuable for P.R. purposes. Anything else is essentially a random lottery from myriad cases that could have been brought in order to counteract the argument (both political and legal) that their copyright protections are empty and completely unenforced is a large part of the cases to which the statutes would make it seem that they apply.

Also, in a case brought by a joint venture owner or reseller for failure to enforce a copyright which causes the partner damages, presumably in some sort of breach of contract or breach of fiduciary duty action, there would be no way to prove damages from all of the non-enforcement, since enforcing every known infringement would not be cost effective and would reduce the net profits of everyone involved.

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  • Based on their maximalistic language and your description of the reality, isn't such a claim creating unnecessary devalvation of legal statements causing that people learn to rarely take them seriously?
    – miroxlav
    Sep 29 at 16:55
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    @miroxiav They wouldn't make the statements if they didn't think they worked. I've never seen an empirical study one way or the other of the question.
    – ohwilleke
    Sep 29 at 16:57
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    @miroxlav In practice the accused has the choice of paying themselves out of house and home in lawyer fees and then getting a judgment that is just as high... or agreeing to pay a harsh but not bankrupting payment to the software house.
    – Trish
    Sep 30 at 0:42
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    @miroxlav they don't care whether you take statements such as this seriously in general, they only hope that you will take this particular statement seriously. People who know that the statement is meaningless won't be affected by it, and people who don't are likely to be impressed by it. Including it increases their credibility with some readers and decreases it with none. It's not like anyone would say, "well, I found the warning very credible until they said that bit about 'the maximum extent of the law' and then I decided that they must be bluffing."
    – phoog
    Sep 30 at 14:38
-5

The first amendment gives people wide latitude to write what they want.

Does that answer your question?

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    The question was if the words implied that a prosecution was obligatory. I don't see that this answers the question. Also, the post was not tagged united-states so the 1st amendment applies to the example but not in the general case.
    – doneal24
    Sep 30 at 13:26
  • @doneal24 This answers the question because "wide latitude" implies that people and companies can in many contexts make a wide array of assertions and promises without regard to truth and without keeping them.-- Re U.S.: True, the OP's profile says "Slovakia", so the English dialog box language and the seat of Microsoft headquarters may be misleading. But obviously, covering hundreds of legislatures is impossible, and the U.S. is a good place to start, for the reasons given, and because lots of readers here live there. Sep 30 at 13:33
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    Speech is highly restricted in contexts like contracts and advertising. Making false statements in a commercial context could potentially be considered fraud.
    – Barmar
    Sep 30 at 14:39
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    @Barmar how would anyone show that the statement was false? More importantly, what damage or injury could anyone show to have been caused by the false statement? It's not a material misrepresentation of the product or service being licensed.
    – phoog
    Sep 30 at 14:43
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    @Barmar I have never seen anybody suing a company for not suing them. Sep 30 at 15:05

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