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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."
NuSphere may not be 'obscure', but the mysql.org website seems a little deceptive. If I didn't investigate it more, I wouldn't have known the difference between mysql.org or mysql.com just by looking at the front page of the website.
.org websites should ever be for-profit businesses as that is not how that domain was intended to be used.
MySQL.org presents their website in a manner that does not give credit where credit is due.
For one, if you go to mysql.org you will find that it doesn't say whether it developed the software, it just says it's got mysql software available for 'free' download. But the mysql.com guy is correct, in that you cannot download any software without registering with mysql.org first. That indicates to me that it's not 'free' because now mysql.org has customer data to use to market their product to. Plus, it doesn't say: "Hey, we didn't write the software, mysql.com is where you can find that info. We just improved upon it." Besides, I don't think
Why should the GPL be any less credible than any other software license out there?
If anything, it's MORE credible, given that it doesn't impair fair use or free speech, unlike many proprietary licenses. (The "No negative reviews allowed" McAffee license comes to mind here...)
The Free desktop that Just Works
Personally, I don't have much of a vested interest in who distributes MySQL, since I don't use it, and probably won't any time soon. However, as one of the first court cases to test the enforceability of the GPL, it think that it's critical that MySQL AB win. If they can't take on another small company over a GPL violation, how in the hell can we expect anyone to be able to stand up to a BigCo that decides to rip off their GPL'd code?
If the GPL doesn't hold up, does that mean Microsoft is free to take large chunks of GPL'd software and make it proprietary?
Good question! What if portions of the GPL are declared to be bad, or if the whole GPL is declared invalid, does that mean that a new licence can be drawn up and all the existing projects can be allowed to relicence themselves under the new licence, or are they stuck as GPLed forever?
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In fact, the most likely reason it has never been tried in court is because nobody seriously thought they could overturn it, so they complied rather than face what they knew to be a losing court battle.
NuSphere is not at all a small company. It's GIANTLY HUGE ;-))
NuSphere is owned and financied by PROGRESS
http://www.PROGRESS.com/ which is really a
giant company like Oracle...
The Price of Freedom is Eternal Vigilance.
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.
Because, this case will create precedent for all GPL'ed software, and whether or not corporations can steal the work of other people and call it their own! It's not a matter of which database software is better, but whether or not individual people should be able to create enforcable copyrights for their own software, and expect them to hold up in court.
If the GPL doesn't hold up in this case, expect a whole slew of proprietary packages to start popping up all over the place, each with a surprising resemblance to other, slightly inferior, but still groundbreaking "Libre" alternatives. It will suck the air out of all those alternatives, and once the alternatives are sucked dry, the Open Standards will go with them. (Remember -- Microsoft isn't the only company out there bent on World Domination through Embrase and Extend tactics.)
Your Servant, B. Baggins
Alot has happened in the MySQL AB vs. Nusphere fight. First Nusphere took the mysql.org domain and acted as if they were the not-for-profit corp behind the software. MySQL AB was right to be frustrated about the situation. But for what we know, this question got resolved, as mysql.org now points to the original mysql.com site and WHOIS reports MySQL AB as the owner.
So where do we go from here? These guys believe that they can enforce article 4 of the GPL against Nusphere for an infraction to the GPL that occured in the past and which has been corrected since then as Nusphere published its source code. I personnaly believe this is not The Right Way. It totally goes against the spirit of the GPL: software must be free, and although we want to protect the original copyright holder, we must not discriminate against the users.
Many people could try to profit from the GPL in an illegal way, does it mean that we can put them on a blacklist? If they decided to change their attitude and in turn abide to the license, I don't see why we would still punish them. They can be a valuable ressource in improving the software, even though it clearly goes against MySQL AB's agenda.
Hey, if you're going to act that way, why did you release it under the GPL in the first place? By retaliating the way they do MySQL AB makes me wonder who between them and NuSphere has the weakest principles.
Using the GPL as a tool for revenge is definitely not what Stallman & followers originally intended.
Of course, MySQL AB could and should sue NuSphere for misrepresentation, moral copyright infrigment and dubious corporate conduct. They should seek damages, which they are fully entitled to under their country's Copyright Act. I for one find it unacceptable to simply lock Nusphere out.
It is sad to see that the first judicial test of the GPL is witness to such a hijacking. And the worst thing: the FSF has it's arms in the mud upto the shoulders.
This is one of these situations where Stallman actually should open his big mouth like he usually does.
I don't think that the judge will let that injonction go through. Their case is too weak to achieve that. Anyways in the worst case, what will prevent Nusphere from starting another company?
pertools will bring you the thruth.
The State at least makes an attempt in democracy. Corporations would be perfectly happy with pure tyranny of money (=unbridled capitalism). So yes. I will accept the rule by the State instead that of "free corporations" any day. Corporations and free capitalism are giving you a "free society" as long as you are ready to join the pack of predators feeding on the weak of the society. That's how profit's really made.
The owls are not what they seem
Get sued random small ass person who has code under the GPL. Get the GPL invalidated. Shut down all the millions of free software projects that make use of the GPL. Hell, forget Microsoft, how do we know that Theo da Raadt or some other cat stroking evil genius isn't gunna do it (no offense Theo). If the GPL is declared invalid then surely you have to be wrong about this whole "no rights to distribute at all" stuff. Surely 99% of people using the GPL would immediately issue statements saying in essence that they are switching to a BSD license. Ahhh, fun with copyright law.
How we know is more important than what we know.
I don't normally reply to myself, but since everybody has completely and totally missed my point...
..." and it would have exactly the same effect.
Yes, you are all absolutely correct that without the GPL, it is illegal to distribute the software at all.
However, I evidently didn't explain myself well enough. My point was not that it would be legal to distribute software without the GPL, far from it.
The GPL grants you additional rights if you follow certain provisions. If you don't follow those provisions, you're subject to ordinary copyright law (which prevents you from redistributing the work). If you do follow those provisions, you have the legal right to redistribute the software.
Now, work with me here. You cannot sue somebody for a GPL violation. Period, end of story. All you can sue them for is copyright violation, since without the GPL's provision you can't copy the software. *All* GPL violations will be tried in court as copyright violations, because that is the only law you could have broken. The only penalty for breaking the GPL is revocation of your license, which leaves you subject to copyright law.
You're all looking at the enforceability issue backwards. The enforceability of the GPL does not *ever* protect the people who offer to license the software. You don't need the GPL for that, because you have copyright law -- copyright law is completely sufficient to shut people down from using your software. You don't even really need a license for that, because you're free to sue company A because you don't like the way they are using your software, but leave company B alone because you're happy with what they are doing. This is completely legal, and you don't need the GPL for that. (I realize that the GPL fulfills a very important role as far as formalizing the agreement and making it easier to get people to comply, but legally it isn't necessary. You could just sue anybody whose use of your code you disagreed with.)
The GPL is just a formalized statement of "I won't sue you if you distribute source". It protects the people *using* the software, because while copyright law would ordinarily say "you can't do this", the GPL says "you can if you distribute source". The GPL does not grant one iota of extra power to the people licensing the software, it grants it all to the people using it -- a statement of protection from lawsuit.
So firstly, it's pretty much irrelevant. The legalese of the GPL could be replaced with "I promise I won't sue you if you
As far as the legal enforceability of the GPL, it may or may not hold up in court. Since everybody is going to get this backwards, I'll spell it out. "Hold up in court" means use it to *protect* yourself, not to sue somebody else. Again, we've already established that the only law being broken is copyright -- you cannot use the GPL to attack somebody for violating it. The GPL is only good for *defending* yourself, to say "no, look, I'm not violating copyright because the GPL allows me to do this". *That* is what needs to be tested in court, and that is what I'm not sure will necessarily work. Theoretically, you might be able to successfully sue somebody for using GPLed code completely in accordance with the license, and *that* would be the "not holding up in court" that I'm talking about.
It would obviously be horribly unethical to do so, and any reasonable judge might well throw the case out, but a good lawyer could probably make a case against the ability to use GPLed code in the absence of a formal agreement.
Hope that clears up what I meant by my first post.
ZFS: because love is never having to say fsck
The reason Eben Moglen has gotten dozens of companies to give up and to submit is because of section 4. Without it, we'd have a lot less free software than we do now. In the past, the threats of nuclear war have been private, but very serious (if you're in the Linux business and lose your right to distribute, say, glibc, you're dead meat).
It's important for everyone to understand that if you violate the GPL, it's not sufficient to just stop violating, you need to get the copyright holder's explicit permission before you can ever start copying, modifying, or distributing the program whose copyright you violated ever again. People got pissed off when RMS talked about "forgiving" the KDE project, but too many people don't realize that from a legal standpoint this forgiveness was required (though evidently only a couple of less-important KDE applications ever had any FSF-owned GPL code in them). Certainly RMS could have been more diplomatic (though maybe not, it isn't one of his talents).
and the argument will be that "because this product was licensed under the GPL, it was represented as being freely available to copy, modify, and distribute. If it had not been released under the GPL, copyright would still be in effect. But, a derivative work was made (at great expense my clients part) in good faith, with the understanding that the product could be distributed."
Basically, they'll argue that you can't give away 99% of something and then come and ask for the whole thing back like an Injun Giver. The motion will be for the GPL to be ruled "equivalent to public domain."
A contract does not mean only what the contract writer wants it to mean. That is why you have recourse *heh* if you sign a misleading contract. The analogy will be drawn that you could buy a house for $1 on the condition that you must paint it pink at midnight on July 4th, 2015. When 2015 comes around you have a vested interest in the house beyond your initial contract $1 -- therefore the pink-at-midnight clause could be challenged.
The problem with what RMS did wasn't what he did legally, we all recognized that. It was his being a jerk about the entire situation.
The KDE Team felt they were within the bounds of the law, FSF felt otherwise. Either there was no FSF code involved or they felt that their case was week, so they focused on complaining and launching a competing project.
When the FSF and Trolltech worked out their differences regarding Qt licensing, RMS issued a statement applauding the change, forgiving KDE and it's users, and cheering on GNOME. Once Qt went GPL, there is no reason for the FSF to support GNOME (which sits on top of libraries with the "bad don't except under special circumstances" LGPL license ) over KDE except for NIH.
RMS handled it with less tact than he normally uses, that is what pissed everybody off. The "forgiveness" could have been done in nice legalese on their website without trying to get it coverage.
Alex