Slashdot Mirror

← Back to Stories (view on slashdot.org)

MySQL AB and Nusphere Go to Court Over GPL

Posted by ryuzaki0 on from the fate-of-the-Free-world-at-stake dept.

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."

15 of 238 comments (clear)

  1. Ramifications? by nakhla · · Score: 5, Interesting

    What will be the ramifications if the GPL doesn't hold up in court? If the GPL hasn't been challenged in court thus far, this could have far reaching implications within the Linux community. 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?

    1. Re:Ramifications? by Anonymous Coward · · Score: 4, Informative

      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.

    2. Re:Ramifications? by lupercalia · · Score: 4, Insightful
      We have absolutely no reason to think it won't hold up in court. Have you ever heard of that happening to any other software license, free or not? I haven't. This speculation is all based on the fact that it hasn't been taken to court, not on any question as to its legality.

      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.

  2. Hmm.. are they the same?? by lemonhed · · Score: 4, Insightful

    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.

    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 .org websites should ever be for-profit businesses as that is not how that domain was intended to be used.

    1. Re:Hmm.. are they the same?? by jsprat · · Score: 4, Interesting
      Minor nit: mysql.org and mysql.com now point to the same IP. The canonical address is/was mysql.com, but the real MySQL site can be found using either address. This was settled (or maybe not, read the link ;) soon after the original story broke.

      NuSphere clearly didn't do "the right thing" and I hope they get their butts kicked.

  3. Without GPL you simply have no license to by Vicegrip · · Score: 5, Informative

    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.

    --
    Do not spread "09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0" over the internet, thank you.
  4. Section 4 of the GPL by lupercalia · · Score: 5, Informative
    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.)

    1. Re:Section 4 of the GPL by bwt · · Score: 5, Informative

      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.

    2. Re:Section 4 of the GPL by egomaniac · · Score: 5, Insightful

      I don't normally reply to myself, but since everybody has completely and totally missed my point...

      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 ..." and it would have exactly the same effect.

      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
  5. GPL is UNRELATED to EULAs by alexhmit01 · · Score: 5, Interesting

    EULAs are a strange beast. They are a non-negotiated contract made through click-through or breaking a seal for something that you purchased already. The theory behind a EULA is that you contract to the EULA. You do not need a license to run software. If you need to clikc Agree to use the software, have you enterred into a contract? That's an INTERESTING legal question.

    GPL is MUCH less interesting. By default, you have NO right to distribute software. The GPL is a distribution license.

    This Slashdot mental masturbation is childish. The odds of the GPL being overturned and everyone's software under license being made public domain is pretty close to 0%. It is only a concern on Slashdot.

    The GPL hasn't been to court because every violator has reached a settlement.

    This case sounds like NuSphere is fucked. The portion in question suggests that if you violate the terms of the license the license is voided. This is pretty standard stuff.

    Here is the question that the court will answer.

    If I break the GPL, I can be sued for damages, etc., and must stop distribution. My license is revoked, etc., etc. Can I then go out, download a fresh copy and distribute under the terms of the GPL? Stallman says no, I'm not certain. That's where this case is questionable.

    However, this is a good test case for the GPL. The question of derivative work is interesting. I'm not certain that the linking scenario creates a derivative work. However, since this company distributed a modified MySQL with their additions, they are CLEARLY distributing the work.

    They need to establish that they have a separate license or did so under the GPL.

    Regardless, the GPL being invalidated would not make things Public Domain. Without license you cannot distribute, so if the license falls, no distribution under GPL v2. FSF releases GPL v2.1 within a week and any provision that includes (or later version) is fine, everyone else needs to update.

    Alex

    1. Re:GPL is UNRELATED to EULAs by brad3378 · · Score: 4, Interesting

      &gt If you need to clikc Agree to use the software, have you enterred into a contract? That's an INTERESTING legal question.

      Great Point!
      I'm not a lawyer, so I have to ask:
      What does this mean to american children?
      As I understand it, Americans under age 18 cannot be bound to contracts.

      Therefore, if EULAs are contracts, and you are a pre-teen American, Should you be allowed to install software? Do you need to obey the EULA?

      --
  6. More information on FSF Website by bkuhn · · Score: 5, Informative

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

  7. The Future of Free Software by Bilbo · · Score: 4, Insightful
    Why i shouldn't just forget the whole thing ...?

    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
  8. accepting the GPL by brlewis · · Score: 4, Informative
    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.
  9. Article 4 of the GPL is critical by JoeBuck · · Score: 4, Insightful

    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).