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Thread: MS offering to buy Yahoo ???

  1. #221
    dijichi2 is offline OpenSource Builder & Moderator
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    But I still think you all should lighten up on the badgeware issue--there are potential problems, but this ain't it!
    Actually, is it is the *entire* issue. With respect, millions of people who use Zimbra, both NE and OSS, aren't going to rest easy because you once heard something somewhere, maybe, perhaps, kinda. The future of Zimbra, once it is swallowed/killed by M$, rests in the continuation of the opensource codebase and the license is the key to whether or not this is possible.

  2. #222
    dkarp is offline Zimbra Employee
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    Quote Originally Posted by dwmtractor View Post
    I came across this on the net several weeks ago and can't find the site, but there is apparently an old legal doctrine--I believe it's actually common law but it goes WAY back--that the writer of this other post said might apply in badgeware cases. I can't remember the exact Latin phrase, but the essential meat of it was "One cannot prohibit what he has elsewhere required." It's one of those provisions that, like the Magna Carta itself, force even rulers to be under the law.
    Groklaw - What Will Happen to Zimbra?
    Bugzilla - Wiki - Downloads - Before posting... Search!

  3. #223
    LMStone's Avatar
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    Default NE Customers May Be More Exposed Than YPL Users

    I just today took a fresh look at the Network Edition license to see if, as a lay person, I could find any protections from Microsoft wanting to turn off Zimbra after the acquisition.

    What I found (again, I am not a lawyer...) leads me to conclude unfortunately that Microsoft could turn off all Network Edition customers the day Microsoft closes on the acquisition of Yahoo.

    Would be nice if someone from Zimbra could opine here otherwise...

    Here's the thought process:

    First, the NE license can be found at http://files.zimbra.com/website/docs...network_la.pdf.

    I was originally focused on Section 9. (Termination), and thought we would be in the clear. But, then I reread the whole license and came across the last sentence of Section 6. (Indemnification):

    "In addition, in the event Zimbra determines that any Product may become subject to a third party claim of intellectual property infringement, Zimbra may, in its sole discretion and as Licensee’s sole remedy, modify or replace or terminate the license with respect to that Product, provided that if the license is terminated without a replacement, Zimbra will refund to Licensee the applicable pre-paid fees with respect thereto attributable to the remainder of the pre-paid period."

    My lay interpretation of that sentence is that Microsoft would need only to make the threat of an IP claim against Zimbra code, not an actual claim, and that would be enough for Microsoft to terminate our NE license right then and there, say, on the afternoon Microsoft closes the deal to acquire Yahoo.

    Once again, I am not a lawyer, but someone please help me to understand if I am missing something here that would give us NE license holders any better protection.

    All the best,
    Mark

  4. #224
    Russianspi is offline Loyal Member
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    Default Patent Infringement

    Can you file a claim of patent infringement against yourselves? If Microsoft owns Zimbra - where's the patent claim?

  5. #225
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    Quote Originally Posted by Russianspi View Post
    Can you file a claim of patent infringement against yourselves? If Microsoft owns Zimbra - where's the patent claim?
    First, it's any IP, not just patent, infringement.

    Second, the NE EULA language says nothing that it must be your own IP (although I suppose it could be a separate related corporate entity to meet the technical definition of "third party").

    Third, Microsoft and most other large tech entities enter into cross-licensing agreements all the time, giving them an "inside" view as to what others consider to be their respective IP.

    Fourth, the language in the EULA is clear as I mentioned that an actual claim is not required to terminate the license. Only a determination that Zimbra's Product (as defined) "may become subject to a third-party claim" is required to terminate the license.

    Microsoft is one of the few SCOSource licensees. You don't think Microsoft might just "determine" on the day of the closing that the Product may become subject to a third-party SCO claim when Microsoft knows through their SCOSource license exactly what SCO believes to be SCO's IP?

    Remember, the language says nothing about an actual claim having to be filed, or even whether the claim may be total hogwash. All the language requires for the NE license to be terminated is a determination on the part of Zimbra that the Product may become subject to a third-party claim of IP infringement.

    I spent thirteen years doing tech and media mergers and acquisitions, and I spent another six years overseeing multi-million software development projects. I've worked with a lot of IP attorneys, and this language in the NE EULA gives me pause.

    Hope that clears up the basis for my concerns.

    All the best,
    Mark

  6. #226
    bigmudcake is offline Senior Member
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    Quote Originally Posted by LMStone View Post
    All the language requires for the NE license to be terminated is a determination on the part of Zimbra that the Product may become subject to a third-party claim of IP infringement.
    But if Microsoft owned Zimbra, they would not longer be a third party.

    I am no lawyer, but to me, that part of the licence was put there in case Zimbra infringed on a patent from another party (whether deliberate, or accidental). And to protect the company and its users, enables the licence to be extinguished quickly.

    Now, if Microsoft wanted to kill off Zimbra, then they would have more hope attacking that part of the licence NOW, while they ARE A THIRD PARTY. Or anytime in the last couple of years for that matter, just as they are doing now with patent threats against Linux OS's.

    If you think rationally, and Microsoft really wanted to just throw Zimbra out with the trash ASAP as the comments in this thread would have you believe, then they would be doing it NOW, BEFORE THE TAKEOVER, in order to reduce the value of Yahoo, and thereby reducing the offer price MS needs to come up with.

    The fact the licence has that clause relating to IP for the last serveral years, and the fact it has never been challenged in the past, makes it more unlikely it would be challenged in the future. But there is still a risk (very remote) it may happen.

    Again I suggest everyone take a deep breath, and think rationally.

    I dont believe there is anything in the licence to stop me from using it, or the Zimbra people to continue development.

    Do you honestly think Microsoft would piss off alot of potential customers by extinguising licences after spending money to buy Zimbra (Zimbra would have some value in the takover price).

    It sounds like a lot of people here, shouldn't even go outdoors for the risk of getting hit by a bus.

    I also urge people here should read the story below
    Tellme's tale as Microsoft subsidiary - Yahoo! News
    Last edited by bigmudcake; 03-02-2008 at 03:42 PM.

  7. #227
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    I don't understand why you think that once Microsoft owns Yahoo, that my concern then evaporates because Microsoft are no longer a third party to the Zimbra NE EULA.

    Once Microsoft owns Yahoo (and effectively becomes Zimbra in the NE EULA), then Microsoft are in a position simply to state that they have determined the Product may become the subject of a third-party claim--at which point Microsoft can terminate our Zimbra NE license immediately.

    The EULA does not require Zimbra/Microsoft to state who that third party might be.

    The EULA does not require Zimbra/Microsoft to disclose how they determined that the Product (which BTW includes all of the non-Zimbra software Zimbra embeds in the NE offering) may become subject to a third-party claim.

    The EULA does not require Zimbra/Microsoft to disclose whether they believe the claim to which the Product may become subject has any merit whatsoever.

    We use Novell's SUSE Linux Enterprise Server ("SLES") because the SLES EULA (and Novell's cross-licensing deal with Microsoft) protect us from any claims Microsoft may have against anything Novell includes with SLES, and the EULA further does not give Novell the right to yank the product out from underneath us on what could be nothing more than a corporate desire. The Zimbra EULA offers no such protection; worse, it enables Zimbra/Microsoft to withdraw the Product, unilaterally, with no recourse on our part.

    I could very much see Microsoft offering Zimbra NE customers an "opportunity" to "upgrade" to Exchange after Microsoft buys Yahoo. Failure to "take advantage" of Microsoft's "opportunity" would result in the (immediate?) cancellation of our NE license.

    Hope that makes my concern a bit clearer!

    All the best,
    Mark

  8. #228
    bigmudcake is offline Senior Member
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    Quote Originally Posted by LMStone View Post

    The EULA does not require Zimbra/Microsoft to state who that third party might be.

    The EULA does not require Zimbra/Microsoft to disclose how they determined that the Product (which BTW includes all of the non-Zimbra software Zimbra embeds in the NE offering) may become subject to a third-party claim.

    The EULA does not require Zimbra/Microsoft to disclose whether they believe the claim to which the Product may become subject has any merit whatsoever.
    Again, I am no lawyer, but Microsoft would still need to have a legitimate third party, with a legitimate IP claim.

    I am sure fabricated claims, or saying there was a claim, when no claim exists, would not stand up in court, and thus the licence would still be valid.


    Also in the part of the License that reads:

    "In addition, in the event Zimbra determines that any Product may become subject to a third party claim of intellectual property infringement, Zimbra may, in its sole discretion and as Licensee’s sole remedy, modify or replace or terminate the license with respect to that Product, provided that if the license is terminated without a replacement, Zimbra will refund to Licensee the applicable pre-paid fees with respect thereto attributable to the remainder of the pre-paid period."

    MS would also have to prove that cancelling the license is the ONLY option to them ("as Licensee’s sole remedy").
    Last edited by bigmudcake; 03-02-2008 at 07:50 PM.

  9. #229
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    Quote Originally Posted by bigmudcake View Post
    Again, I am no lawyer, but Microsoft would still need to have a legitimate third party, with a legitimate IP claim.

    I am sure fabricated claims, or saying there was a claim, when no claim exists, would not stand up in court, and thus the licence would still be valid.
    Well now we get to the core of our differing perspectives!

    You see, I have no legal way via the EULA to compel Zimbra/Microsoft to disclose anything about how they came to determine the Product may become the subject of a third party claim.

    And again, your language makes me think you are thinking there must be a claim from a third party for my NE license to be terminated, but that is not what the EULA says. The EULA says only that the license can be terminated if Zimbra/Microsoft "determines" that the Product may become the subject of third party claim.

    A third party does not have to file a claim, threaten a claim, or even communicate with Zimbra that they have a concern about a potential claim for Zimbra/Microsoft to terminate my license--according to the way I am reading the EULA.

    But I'll tell you what... your persistence (thanks!) on this topic has resulted in my sending the EULA off to my attorney for his review.

    All the best,
    Mark

  10. #230
    bigmudcake is offline Senior Member
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    Quote Originally Posted by LMStone View Post
    Well now we get to the core of our differing perspectives!
    ....
    But I'll tell you what... your persistence (thanks!) on this topic has resulted in my sending the EULA off to my attorney for his review.
    I would be very interested to hear you view on the part that says as "Licensee’s sole remedy", as I think it may be that wording that prevents MS from terminating licenses with frivolous claims or Yahoo for that matter.

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