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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".
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.
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.
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.
"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.
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)
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."
...WeSueYou where 'money' > 0
Damn the man.
------
Random, useless fact: I type in startx entirely with my left hand.
This whole tiff is rather interesting, but not as interesting as this:
Yeesh.
-- Geof F. Morris
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.
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.
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
In the GPL violation that MySQL AB has sued NuSphere for, the Gemini software component was statically linked to the GPL'd MySQL server.
Some more info: the MySQL DBMS can make use of a number of so called table handlers that go between the server and the storage system (which usually, but not always, is a disk). A vast majority of all MySQL installations run on the MyISAM table handler that MySQL AB has developed. Gemini is also a table handler, and it can be used in conjunction with or as a replacement for MyISAM. In addition to Gemini (which was developed by Progress / NuSphere) there are other third-party table handlers: Berkeley DB from Sleepycat Inc. and InnoDB from Innobase Oy. Each table handler has its pros and cons, and it depends on the application which one(s) you want to use. Overall, the existence of multiple table handlers for MySQL extends the range of applications for which MySQL can be successfully used. In a web application, MyISAM gives you excellent performance. In a traditional client/server multi-user environment, one of the third-party table handlers mentioned above may be most useful. A table handler for MySQL cannot be used as such with any other DBMS.
I hope this information is useful!
-Marten Mickos, MySQL AB