MySQL AB and Nusphere Go to Court Over GPL

A little fairy whispered in our ear: "MySQL AB is seeking a temporary injunction against NuSphere, even though they've finally released the source code for Gemini and MySQL Advantage. According to the GPL, NuSphere lost the right to redistribute when they violated #3 by not providing the source code originally. The FSF will testify tomorrow in court, according to this Newsforge article." Newsforge and Slashdot are both part of OSDN. We've done a couple of previous stories about the MySQL AB vs. Nusphere conflict: the original story, a follow-up, and a note about a countersuit. Update: 02/26 21:15 GMT by T : bkuhn (Bradley Kuhn of the Free Software Foundation) writes: "The FSF has a press release on the matter and affidavit that we filed is also available."

Comments

Re:Ramifications?

[Anonymous Coward]

Trust me..if it was ever possible for anyone to make GPL'd code proprietary, without a reasonable amount of legal danger to the party stealing the code, universities would already have done it a LOOOOONG time ago. The GPL was written expressly so that institutions could not lay claim to code written to be distributed and used by the public. The BSD license, on the other hand, more or less allows anyone to take anything written for it, so long as they provide credit to the original authors.

Without GPL you simply have no license to

[Vicegrip]

distribute your derivative work.

The GPL is clear on this point. If, for whatever reason a court of law decides the GPL is invalid in a particular case, then you lose any right to distribute derivative works.

Thus, there is no incentive for a company to try to invalidate the GPL, because without it they have no rights to distribute derived works. The only option a company has is to prove it is in compliance with the GPL.

The one interesting thing here I observe is that once you have been found in violation of the GPL only the holder of the copyright can reinstate your ability to distribute derivative works-- and there is no obligation to do so.

Thus, companies using GPLed code in works they distribute need to pay special attention to compliance as none-compliance carries with it the possibility being permanently blocked from using the GPLed code again.

Admitedly though, it's not complicated. Simply ensure you distribute your source along with the product, and all is well.

Otherwise put, if you want to use GPLed code, you have to share the code of your derivative work with everyone.

Re:Without GPL you simply have no license to

[Hallow]

If you want to distribute a product based on GPLed code, then you have to share the code of your derivative work.

You are allowed under the GPL to create a derivative work, say a modification particular to your business, and as long as you don't distribute the application outside of your business, then you are not obligated to share the code of the derivitve work (although you're encouraged to if the code might be useful to others).

Re:Without GPL you simply have no license to

[hawk]

>The GPL is clear on this point.

yes, but . . .

>If, for whatever reason a court of law decides
>the GPL is invalid in a particular case, then you
>lose any right to distribute derivative
>works.

I am an attorney, but this is not legal advice. If you need legal advice, contact an attorney licesed in your jurisdiction.

This is *far* from clear, though possible. I assumes that part of the GPL is stricken, the rest upheld, and no other defenses prevail.

Other possible outcomes:
*finding other terms to the license to replace the stricken terms (reformation)
*finding that the failed licensing placed it in the public domain (unlikely without odd facts)
*finding that the copyright holder is estopped

While I believe, in the general case, that the most likely result flowing from a purported violation is that the "copier" has no rights, the other outcomes are possible, at least with the right facts. Of them, I would hazard a guess that reformation would be the most likely to arise.

hawk, esq

Section 4 of the GPL

[lupercalia]

The most interesting comment raised in the article is the invocation of section 4 of the GPL:

Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

Basically, since the GPL is the only document granting you permission to use the software, violating the GPL revokes your rights under it. That means that if it is found that they violated the GPL (which seems a foregone conclusion if the reporting is accurate), they will no longer be able to distributed MySQL code at all. In other words, put completely out of that business.

Now that is something other companies will take seriously in the future. (IANAL and all that of course.)

Re:Section 4 of the GPL

[bwt]

Enforceability of the GPL is problematic at best. It's no more legal than any other software license, and consider how many objections the average /.er raises to (say) Microsoft's clickwrap licenses. Those same objections apply to the GPL, but even more strongly.

Totally wrong.

My objection to Microsoft's clickwrap licence is that it only purports to grant me a licence to "use" the software on a single machine, which I already have by 17 USC 117, since I am the "owner of a copy". Since their contract does not give me anything I don't already have, it is unenforcable because there is no "consideration".

The GPL is a unilateral grant to do something that you cannot otherwise do without violating 17 USC 106. It is not a contract at all, but a unilateral grant. If the GPL is unenforcable then NuSphere is commiting copyright infringement by distributing a derivitive work.

Re:First legal test?

[Bilbo]

It impairs the unspoken but equally unalienable right to fair business.

Unfortunately (or, fortunately, depending on how you look at it), corporations no not have Constitutionally guaranteed rights.

More information on FSF Website

[bkuhn]

FSF has a press release and the affidavit we filed available on our website.

Re:Ramifications?

[Mr. Slippery]

The BSD license, on the other hand, more or less allows anyone to take anything written for it, so long as they provide credit to the original authors.

That's the "old" BSD licence. Problem is that you can quickly end up with pages and pages of author credits. The "new" BSD licence - which is essentially the same as the X11 licence - no longer requires this.

accepting the GPL

[brlewis]

More concisely,

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

Re:no freedom

[Anonymous Coward]

If I play around with the Linux kernel and add some code, are the FSF Gestapo going to come crashing down my door demanding me to release all the code?

I suggest you read the GPL FAQ before you spoout any more bollocks.

Re:Ramifications?

[Dwonis]

The GPL says that programs licensed under it can be regarded as licensed under that version or higher versions. What this means is that if the GPL was invalid, current GPL code would fall under standard copyright law (currently you can choose not to accept the GPL and use it under standard copyright either, but that grants you zero rights).

Nitpick: The GPL doesn't actually say this, but the text declaring that the work is licensed under the GPL usually (though not always) does.

Re:The RMS Problem

[Trepidity]

RMS handled it with less tact than he normally uses

Don't you mean "the same amount of tact that he normally uses"? The man isn't exactly fames for his tact...