Maybe, but I think the bigger issue is that the left hand doesn't know what the right one is doing. Microsoft has a viable bit torrent surrogate which would allow them to force a EULA up front:

http://en.wikipedia.org/wiki/Background_Intelligent_Transfer...

"Version 3.0 (November 2007) Adds peer caching which allows users to download content from peers and also serve content to peers [...]"