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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."

7 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?

  2. 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.
  3. 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
  4. 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

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

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