[Info-vax] VSI Subscription Licensing Response Letter

[Arne Vajhøj]

On 5/26/2021 8:24 AM, Simon Clubley wrote:
> On 2021-05-25, Arne Vajhøj <arne at vajhoej.dk> wrote:
>> On 5/1/2021 11:15 PM, Simon Clubley wrote:
>>> On 2021-04-30, Dave Froble <davef at tsoft-inc.com> wrote:
>>>> On 4/30/2021 2:36 PM, Arne Vajhøj wrote:
>>>>> On 4/30/2021 1:09 PM, Simon Clubley wrote:
>>>>>> Why would it become the customer's problem ? Have you seen something
>>>>>> the rest of us have missed so far ?
>>>>>
>>>>> Transfer of something of value away from creditors can
>>>>> be a legal problem. In bankruptcy cases what is called
>>>>> "fraudulent transfers" can be undone by court.
>>>>
>>>> If it is an agreement between vendor and customers, I don't see how it
>>>> could be a problem.  That would take something of value from the
>>>> customers, which they have paid for, and are entitled to.
>>>
>>> Indeed. That is _exactly_ the point of escrow agreements.
>>
>> But it is not the case here.
>>
>> A typical escrow agreement is that company A delivers software
>> X to company B and promise N years of support for a given amount.
>> The source code for X is put in escrow and B get access to it
>> if A are not able to deliver the promised support.
>>
>> What we are discussing here is a different scenario. Company A
>> delivers software X to company B and promise N years of support
>> for a given amount. Company A actually delivers as promised, but
>> after the N years they don't want to sell X again or A and B cannot
>> agree on the price for selling X again. And you want B to get
>> X for free forever in that case.
>>
> 
> No Arne, that is not the case.
> 
> I have made it very explicit that a condition for the permanent licences
> escrow triggering is that you had a valid support contract at the time
> that VSI either failed or was taken over by some company unable to provide
> proper support or which wanted to impose extreme price rises.
> 
> That makes it _exactly_ the same as the normal source code escrow
> release you are talking about in your first example.

No it does not.

You paid for a license until time T.

With a normal escrow agreement you will have rights up to time T
and zero rights after that.

Getting a permanent license is not like that. Getting a
permanent license is getting something after time T. Something
that you have not paid for.

>> Very different.
>>
>> And given that if VSI goes under then the right to
>> issue new VMS licenses is likely the only real asset
>> that can be used to cover debt to creditors, then giving
>> away that asset for free to customers will raise
>> questions.
> 
> It's not for free. It's part of the legally binding contract between
> the customer and VSI which was agreed before the customer would agree
> to hand over money to VSI.
> 
> That makes it _exactly_ the same as the normal source code escrow
> release you are talking about in your first example.

No.

If the escrow agreement says that a third party would get
right to source code from VSI went under until your license
expired at time T, then it would be a normal escrow agreement.

>> And given that the whole point of this discussion is to
>> remove risk for VMS customers, then a solution that could
>> be overturned by court is not good.
>>
>> The asset preservation issue could be addressed if it
>> was not for free. Customer would be offered a forever license
>> for a "fair amount" if VSI went under. Then creditors would
>> get some value and the legal risk would be somewhat
>> mitigated.
> 
> Waiting until after VSI goes under to arrange this is _way_ too
> late and would be totally unacceptable to most people because of
> the risk to the customer's company.

Yes. Above is describing an agreement made now but with payment later
if worst case happened.

>> But if the right to VMS ends up with a company
>> just wanting to sell licenses and not provide any
>> development & support, then most customers will
>> want to migrate off VMS.
>>
>> And then what is the difference between having prepaid
>> for 5 years license and paying the equivalent of 5 or 10 years
>> license for a forever license and migrate off in 5 years?
> 
> How many emulated 20-year-old plus VAX systems are still in production
> use these days for various reasons ? It's enough to allow a commercial
> market for such emulators.

Some. But that is also a business risk.

Arne