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MySQL AB Counter Sues NuSphere for GPL Violation
Rolan writes "Looks like MySQL AB and NuSphere are at it again. A LinuxGram story has all the details... MySQL canceled the distribution contract they had with NuSphere, prompting NuSphere to sue them. MySQL has counter sued for trademark infringement and GPL Violation. About 2/3 through the article is where the GPL Violation is covered, but an interesting read. One of NuSphere's Lawyers (according to Linux Gram, NuSphere denies it, but I think it's true, read for yourself) said that: "they will deny the charge and, if that doesn't work, deny that the GPL is enforceable."..."
"Free Software " declared RMS, "always starts with GNU".
RTFA: "The MySQL suit, filed last Wednesday in federal court in Massachusetts[...]"
Yes, it's a long article, with some big words, and no pretty pictures, but the above quote is the third paragraph down.
Jebus.
...j
Boy, the great thing about free software is that you get away from all those legal battles and corporate wrangling that plagues the commercial software world...
Where there is money at stake, there will be legal battles, regardless of wether the money comes from commercial software or free software (or supporting free software or whatever).
I wonder how many of the benefits of free software come more from the free beer nature of it than the free speech nature of it. Both sides seem to discount the 'free beer' aspect as unimportant. The commercial companies point out that it's TCO that matters, not ticket price. The free software people talk about how it's openness and freedom that matters, not the ticket price.
But in reality, it's the free beerness that is much of the benefit, of the root cause of much of the benefit.
More of my spoutings on this available here:
http://www.snowdrift.org/computers/lamp.html
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Either you can build a business around free software or you can't. If you can, then money needs to change hands, and these sorts of arguments will happen just like they do for every other business.
If, on the other hand, you think money should not be invovled, then don't be surprised when large companies (or any companies, come to that) lose interest in free software.
There's been a lot of talk about how to found a business on free software, but there's not much evidence for it yet.
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I don't believe there is any doubt that you as the author of software hold the copyright.
That part of the GPL will always be enforceable, because it's not really the GPL but rather just straight copyright.
The problem lies in that NuSphere wrote custom software of their own, and the GPL forces them to relinquish their copyright control over there own creation because they happened to derive their final product from the mySQL stuff.
It's this conflict that is likely the basis of any GPL enforceability question.
I believe that Mozilla includes a built-in demoroniser, by assuming that stuff claiming to be Latin-1 but having characters in the C1 range used by CP 1252, is really CP 1252.
MySQL says NuSphere releasing Storage Engine source just the other day doesnt change history, and its new CEO doubts the source code NuSphere has released is the stuff Progress really used in its proprietary version of Storage Engine. Mickos claims he heard someone tried to compile the code and failed.
Oh, he "heard" that "someone" couldn't get it to compile? Well I guess the Linux kernel is in the same boat, because I hear of people who can't get it to compile every day.
In Mickos' situation, I would have downloaded and tried to compile the code myself, but nobody asked me...
On the other hand, the article is so poorly written (and, by extension, edited), that it could be a misquote, a misunderstanding, or just made up out of whole cloth.
-- Old Man Kensey
Somebody involved in this story is not a Linux company - either MySQL, NuSphere, or maybe LinuxGram. Why do I say this? The article is full of those ?smart quotes? that need to be demoronised. Since the dumb quotes are throughout the article, I'm thinking that LinuxGram is running things on Windows somewhere. That's pretty sad, really.
Your right to not believe: Americans United for Separation of Church and
A week or two ago I was wondering who were the good guys. Now, thanks to the lawyers brilliant explanation of their legal strategy, I know.
Any company that sponges off the Free Software community, and then doesn't support the GPL deserves no support at all from the community.
Caution: Now approaching the (technological) singularity.
I think we've pushed this "anyone can grow up to be president" thing too far.
As usual, it is worth pointing out that if the GPL were ever found unenforceable, then you have NO right under copyright law and international treaty to use the code - it doesn't suddenly become public domain.
This is one of the reasons the GPL tends not to get challenged - it's a lose-lose situation for a GPL infringer who challenges it in court:
Scenario a: GPL challenge fails. Infringer has to GPL all derived work of original GPL code that he wants to distribute. Presumably he didn't want to do this, otherwise he wouldn't have taken it to court...
Scenario b: GPL challenge succeeds. Infringer has to stop distributing all derived work of original GPL code, as he now has no rights granted to him by the original copyright holder to use the code.
Choice of masters is not freedom.
Well, if an external entity can compell them through the force of law to release their program under the GPL or prohibit them from distributing it, then obviously the author is *not* in control of the software.
A Government Is a Body of People, Usually Notably Ungoverned
The GPL exists BECAUSE every other copyright and IP related issue is unreasonable.
Wow. I think you proved the posters point. Every other copyright and IP related issue includes: non-copylefted political opinions and literary works (which RMS deems more than acceptable), other non-GPL licensing like BSD, MPL and even public domain, trademarks, artistic rights, etc., etc., etc.
The entire concept of copyleft, that an author can force distribution of derivative source code, can ONLY be based on traditional copyright. If an author should not be able to own his works (as RMS asserts) then the author owns derivative works even less! The only things that prevents GPLd works from being closed up, encrypted and locked away behind onerous contracts and registration schemes is copyright law.
A Government Is a Body of People, Usually Notably Ungoverned
As usual, it is worth pointing out that if the GPL were ever found unenforceable, then you have NO right under copyright law and international treaty to use the code.
Not necessarily. The GPL, and not copyright law, is what defines dynamic linkage as creating a derivative work. (please quote the relevent clauses of copyright law if you disagree). If the GPL were unenforcable, then there is nothing stopping one from dynamically linking to a GPL shared library.
A Government Is a Body of People, Usually Notably Ungoverned
The GPL is the entity controlling derivations, since it is the one that hasn't removed the restrictions from them. To offer an analogy, if I prevent you from entering my home, I can't say "it's not me preventing you, it's trespass law".
A Government Is a Body of People, Usually Notably Ungoverned
The typical EULA and software license is not based on copyright law, but on contract law. That's why they're called agreements. A world without copyrights would still have contracts.
And a world without copyrights would still be a world with bizarre encryption and registration schemes. If you can break the copyright-less Windows protection, you're home free... Until the next version.
A Government Is a Body of People, Usually Notably Ungoverned
Screw 'em both. I'm switching to PostgreSQL.
Any reason (technical OR philosophical) not to do this?
Jesus was all right but his disciples were thick and ordinary. -John Lennon
NuSphere may not have met the agreement as far as MySQL is concerned, but it seems to me MySQL still made aproximatly 300K on the deal.
And for what?
Also, NuSphere is required to give GPL code away for free to 'anybody'. They are required to give it away to people who buy the product. (What those purchasers do with it is up to them, not NuSphere).
So, unless NuSphere was refusing to release the source code to anyone who purchased the product they were not violating the GLP.
I never said 100% of all people agreed what it meant. I said it had a definition in the law.
"Derivative work" is defined by copyright law. It's not vague at all.
This article bounces around like a 3 - year old exposed to Penguin Mints. There is no logical progression of events, no real explanation of what happened, and no coherence. This is a bunch of He Said - someone else said. I understand why no reporter put his name on this article - I never would want my name on something so poorly written.
Take a look if you like: there are 44 paragraphs, with an average of 3 sentences each.
Here is my favorite:
Anyway and why this is more than passingly interesting, buried half way through its suit, MySQL claims NuSphere materially breached the GPL by distributing programs derived from MySQL without providing the source code as required by the GPL license.
Forget the reporter: What kind of editor let this pass through? This passes for reporting? The freaking WORD paperclip speaks more intellegently.
Ya know, it's crap like this that makes MS and their "viral code" provisions look (in the eyes of the uninformed) justified. OSS has bigger fish to fry than themselves. If they want credibility in the business world, this squabbling over GPL violations needs to end pronto.
The truth about Scientology, Xenu, and you: Operation Clambake
Ouch. My mistake, sorry. I guess I just assumed that since MySQL AB is a Swedish company, that they were going through the Swedish legal system. It did strike me after posting that I didn't consider the nationality of NuSphere... On the other hand, then, this might mean that the GNU GPL gets testing in a US court of law, which is actually more interesting in the grand scheme of things. Just less applicable for myself, personally. Thanks for the heads-up, anyway.
main(O){10<putchar(4^--O?77-(15&5128 >>4*O):10)&&main(2+O);}
So how can the MySQL people make some money?
Consult. Train consultants. Offer certifications in MySQL database design/administration
Add features. No one said they weren't allowed to make any money. Maybe create some features (like NuSphere) and sell them, either a table type or more powerful administrative tools. They released the code under the GPL, but they still have the right to release other versions under other licenses, and if they weren't abandoning the primary database that was under the GPL, I personally wouldn't fault them
Start a support organization. When I first started using MySQL, I was very tempted to send them the $1000 license fee they wanted for quick-turnaround email support, because I was relatively new to SQL at the time, and I needed rapid-response for my rapid-development. Anyhow, if you were going to shell out support money, it would seem to make sense to do so to an organization that had the developers at the top
The list goes on and on. Do they need the trademark "mysql"? No. Try, "from the MySQL AB developers comes..." Should they have the trademark? Almost certainly, because we don't need another Microsoft/kerberos fiasco, and owning trademarks on names like "mysql" and "kerberos" can prevent the hostile interference, but MySQL has seemed pissed about the web site all along. How insecure can you be? Everyone knows all about their site. I've got mysql.com on my toolbar bookmarks.
Anyhow, hopefully they'll wise up, and find a way to support themselves AND support the project. I don't think I'm being idealistic when I say that it is possible to do so.
You're completely wrong. When businesses pick mysql to support $100M+ operations, they'll happily pay $1000 or more if it provides them with value. I'd imagine that that's true on a much smaller scale, but I can say that if I had any need for mysql consulting, I'd happily PO a contract at $1000, and it would be trivial to justify next to the cost of an Oracle license.
Just because MySQL is cheap doesn't mean it isn't the best choice for a lot of things -- just as apache being free doesn't mean that people won't pay for it. (And, in fact, people constantly pay hundreds of dollars for stronghold now, even if they could now legitimately compile and use openssl with apache)
Also:
I don't think RMS deems copyright of literary works 'more than acceptable'. He's pointed out that copyright made more sense when it was an industrial regulation unlikely to intersect the life of an ordinary person.
The difference is that copyrights constrain everyone, while contracts only constrain parties to the contract. So if Alice has a copy of MS Office that she downloaded off Gnutella, it looks like someone somewhere broke his license agreement with MS. But Alice is not breaking contract law by using and distributing this program, because she is not a party to the agreement.
As for bizarre encryption (content control) schemes, I think recent history shows that without the law backing them up they'll be cracked very fast.
If you deny that the GPL is enforcable, then you deny that every other software license based on copyright law is enforcable. Somehow I doubt that is going to happen.
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"Every artist is a cannibal, every poet is a thief."
Speaking as the 1st person to ever engage in legal action to enforce a GPL (against an employer who wanted to violate a GPL back in 1989), I can say with reasonable certaintly:
#include <the_following_disclaimers.h>:- under US law
- in the general case
- results will depend on the
quality of your legal team and the
quantity of your $'s
...
- while copyright laws have changed since
1989, I recently received advice which
suggested that these changes have not
impacted the GPL enforceability
- IANAL
... :-)
We won. The employer was forced to obey the GPL. We even got my next employer to cover our legal billschongo (was here)
By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs.
I take this to mean that if the programs are seperate executables which communicate via normal inter-program communication methods or shared files (although shared memory is a totally different animal), then the program is fine.
How does the NuSphere software violate this? Does it make function calls or is it compiled with the GPLed code? Or is it simply a program that is performs some system tasks which the GPLed code then uses?
I'm not trying to give you a hard time, I'd genuinely like to know what part is violated.
"He's more machine now than man, twisted and evil."
NuSphere says there are two components to Gemini ? a Table Handler and a Storage Engine. The Table Handler source code has been GPL since NuSphere MySQL Advantage started shipping in April. The source code to the Gemini Storage Engine, which is also included in Advantage and Pro Advantage, wasn?t GPL?d until the day before yesterday. Previously, Storage Engine was only available under a commercial license.
IANAL, etc. etc. ad infinitum, but if NuSphere's description of the product is correct, this does not sound like it violates the GPL in any way. As long as they release the code for the GPLed programs they should be in the clear. The GPL doesn't say you can't release software that works with the GPLed code, just that you can't release software that uses the GPLed code. That includes library calls, but does not include interaction between programs (e.g. through signals, semaphores, etc.).
Feel free to correct me if I am wrong (because if I am I'd like to know how it actually *does* work). As far as the domain name "hijack", unless MySQL actually tradmarked the MySQL name rather than just the logo, I think they have no ground to stand on. The article does not mention whether this is the case or not.
Wow, I guess it sounds like I'm flaming MySQL something heavy. I really have nothing against them, and think they make a great product; I just think they are most likely wrong in this case (assuming that the information I have is correct).
"He's more machine now than man, twisted and evil."
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
...WeSueYou where 'money' > 0
Damn the man.
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Random, useless fact: I type in startx entirely with my left hand.
Of course the GNU is unenforcable... its not even unix!
Wait...GPL? What the hell is that?
never let the facts get in the way of reporting.
(2,3-Benzopyrrole)
I am against copyright in all forms.
The GPL is different though. It is copyleft. It means freedom and it's elite.
Conformity is the jailer of freedom and enemy of growth. -JFK
This whole tiff is rather interesting, but not as interesting as this:
Yeesh.
-- Geof F. Morris
It is in their best interest for their licenses to mean something. However, their licenses and the GPL are fundamentally two different things. The GPL is a distribution license, framed in accordance with the appropriate section of US copyright law (I don't remember the section number). "[A]ss-disgusting proprietary licenses" are usage licenses, and have no basis in current US law that I can find. Therefore, a yes or no on the enforcability of the GPL won't have much effect on the proprietary licenses. On the other hand, since the GPL is grounded in copyright law, it is more likely to be upheld.
to test the GPL on.
Why? because there's no problems with either company being too big. Imagine trying to take AOL or Microsoft to court regarding the GPL, simply because they've got the money to hire good lawyers and "convince" the judge they were correct.
However, in a case like this, where both companies are pretty much equal, the judge will be more apt to look at the case fairly.
Granted, the GPL may not even come up in this case, as it's not the primary charge, but even still....
that's my penny's worth...
It's interesting how every other copyright- or IP-related lawsuit gets shit here. Why is it that some people think every copyright except the GPL is unreasonable ? Others here have argued (not entirely convincingly, mind you) that if the GPL is unenforceable, other licenses may be as well. In a similar but stronger vein, the GPL copyright depends on the validity of the right to protect IP by copyright - if you want to discard notions like IP and copyright, you might as well throw out the GPL too. But some people seem to think all forms of copyright violation are OK, EXCEPT GPL violations, which are somehow sacrosanct. You can't have it both ways.
As much as I hate to see OSS groups fighting, it sure seems more common (ala DotGNU/Mon and others)
Shoudl be interesting to see where this goes. As a user of both pgSQL and MySQL, I think we can all do without the PostgreSQL is better sniping. MySQL has done a lot for the web and Open Source and it will be a shame if this fight impacts their development work.
Top Most Bizarre/Disturbing Error Messages
Nusphere is owned by Progress Software, a 271 million dollar company. Chump change to Microsoft, but maybe big enough to attract the attention of the FTC.
www.lucernesys.comHorizon: Calendar-based personal finance
It seems like the deal was about two things:
1: The right to distribute mysql. Since it's GPL'd the value of this is zero so this point is void.
2: The right to use the MySQL trademark. This should give them the right to register a homepage, how could it not?
I still wants to know what exactly NuSphere did buy from MySQL AB?
MySQL seems to think that NuSphere didn't get any, MySQL just got loads of cash for nothing.
Reading the article, gave me a feeling that either one of them lies or both lie, just to get their way. about saying that the GPL is not enforcable, i don't think that this is right. I think it is enforcable, and one should realize that be looking back a few weeks. You can see M$ trying to create a bad name for the gpl cause they can't touch it. Do you think that microsoft with the myriads of lawyers would be afraid to touch any program under the gpl if they new they could defeat the gpl in court? i don't think so.
regards,
My Thoughts
We have not said the GPL violation is related to the trademark violation. We have observed and reported to NuSphere a number of violations, including:
* breach of the interim agreement we had
* trademark infringement
* breach of the GPL licence
And to enforce our rights we have filed a counterclaim.
We have no termination tactics. On the contrary, we have made every effort to reach a final agreement with NuSphere. We offered them new revenue streams and "most favoured nation" terms, but they reacted by suing us.
-Marten Mickos, MySQL AB
MySQL AB's interpretation of the GPL licence is based on the interpretation of the Free Software Foundation. See http://www.gnu.org/copyleft/gpl-faq.html#MereAggre gation
MySQL AB -has- trademarked the "MySQL" name. The trademark is registered in Sweden and 13 other countries, and applications have been filed in other countries, including the US.
-Marten Mickos, MySQL AB
Under the interim agreement, NuSphere had the right to fair use of the MySQL trademark and the right to use and register "NuSphere MySQL", "Rocket MySQL" and "Enhanced MySQL". "Fair use" is defined in the legislation and has a very limited meaning.
NuSphere never bought the rights to the trademark, and never had the right to set up a site called mysql.org.
The $300k consisted of three monthly payments for June, July and August 2000 and nothing more. The payment was for being part of the GPL announcement of MySQL AB and for beginning to ship a product that had the word "MySQL" in its name.
As the interim agreement wasn't followed by a final agreement, it terminated. MySQL AB continued to work in good faith with NuSphere in anticipation of reaching a final agreement. When MySQL AB learned that NuSphere violated the terms of the interim agreement despite numerous contacts and notices, MySQL AB formally informed NuSphere that the interim agreement was terminated. And even then, we at MySQL AB tried to reach a solution by flying from Scandinavia to Bedford, MA to meet with NuSphere and sort out the situation. After three days of meetings, NuSphere surprised us by serving a lawsuit. That is how this whole thing started.
-Marten Mickos, MySQL AB
We might be both blind and stupid, but the GPL violation is quite clear.
Only after we sued NuSphere for GPL violation did they post the source for Gemini on a website. Please also note that the GPL licence requires you to ACCOMPANY the software with the source code or a written offer to supply the source code. To date NuSphere has not to our knowledge even admitted the GPL violation.
We have submitted a counterclaim of some 35 pages with detailed information on the violations we claim NuSphere has done. This claim is a public document and anybody can go to the courthouse to study it.
-Marten Mickos, MySQL AB
NuSphere (or actually Progress at the time) paid for being part of MySQL's GPL announcement in June 2000 and for being able under the interim agreement to use the MySQL trademark in their product name in three limited forms - not for registering any domains.
They made three monthly payments and then stopped paying.
The sum they paid may sound like "loads of cash" to one person, but with some 30 people on its payroll, MySQL AB's cost level is much higher.
-Marten Mickos, MySQL AB