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:Section 4 of the GPL

[egomaniac]

(disclaimer: IANAL, but I have some real-world experience with IP law)

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.

After all, if you can make the legal case that "clicking OK doesn't really count as accepting a license", you can easily make the case that "doing absolutely nothing (which is all that is required to accept the GPL) sure as hell doesn't count as accepting a license". If Microsoft can't implicitly force you to accept a contract, neither can the FSF. The law doesn't care if you're nice or not.

However, even if (as I believe) the GPL is legally unenforceable, that probably doesn't hurt anything. GPLed code is still protected by copyright, so even if the GPL itself is powerless, the copyright holder (if such can be established) can still sue to prevent redistribution. The GPL, in this context, basically constitutes a non-enforceable statement of "we won't sue if you release source code".

Even this might not hold up in court. Trademarks are lost if you don't protect them. I don't believe the same applies to copyright, but only an IP lawyer would know for sure the legal ramifications of selectively suing people who don't follow your (arbitrary, non-legal) license.

Hopefully the courts will shed some more light on this soon.