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NuSphere vs. MySQL AB Hearing
An anonymous submitter sent in: "The hearing is over, and Adam Kessel posted a report about what happened in the court room. The judge is probably not going to issue a temp. injunction against NuSphere on the GPL violation, but probably WILL issue an injunction on trademark issues." Politech has another report on the hearing.
Here's some background: Boston judge to hear first test of GNU license used in MySQL and NuSphere replies to Politech post about FSF and Boston lawsuit. Looks like the GPL isn't an issue here after all -- in other words, it may just be a run-of-the-mill contract dispute between two parties.
Also the judge didn't want to get into the technicalities as they were way beyond her at this point.
MySQL wins on the trademark count (for now at least), but the motion on the GPL violation is being pushed to August.
All bow to his Noodliness!! His Noodle Appendage has touched me!
Thought a link to the actual GPL might be helpful. Here it is. My (limited) understanding is that NuSphere released a product statically linked to MySQL, but did not release the software under GPL and therefore violated GPL.
Nusphere fixed the basic issue here; they no longer distribute without source code.
MySQLs actions make little sense, they are acting like spoiled children who didn't get their way. (Incomprehensible to me; I think an ego clash occured)
MySQL can't claim damages with regard to the GPL because there aren't any. If you look at the information released the other day you'll note near the end (EFF statement) That Nusphere fixed the problem; That EFF encourages compliance, not court action; and the short acknolwedgement that they believe Nusphere violated the license.
You would note near the beginning they state the purpose of the GPL and their general intent to reach a compliance.
The GPL is a distribution license; it gives the licensee rights that they would normally not have, namely to distribute the code. By violating the GPL, NuSphere lost these rights, and until the copyright owner decides to give it to them again, they cannot distribute the code. This is the main argument, and it's validity may be decided by the court case.
I'm a bit vague now on GPL and LGPL for static vs dynamic linking. Let me note that NuSphere makes themselves sound crooked when they claim that a mail client connecting to a GPL'd mail server would be polluted. That's absurd.
So, I've always gathered that the LGPL exists to permit a program to link to libraries - but my impression was that the LGPL was phrased such that code could statically link to it -- such that the result would be a single executable, and that even under the GPL, it was legally permissible to write code that would rely upon a dynamically loaded library. Can someone confirm this is the case? IE, you could write a program which required that a person have libmysqlclient.so* installed for dynamic loading and that program could be closed source, but you could NOT produce an executable which statically linked that into the executable unless libmysqlclient.so was distributed under the LGPL (which, of course, it is not).
Despite Nusphere's comment, the point is that it is *not* about linking (perhaps Nusphere where trying to cloud the issue).
Nusphere lost the right to redistibute MySQL because they made a modified version without the source code for that version being available: "Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License."
The MySQL authors therefore have the right to stop Nusphere redistributing their software.
MySQL AB undoubtedly have their own reasons for being so stiff necked.
And here is the kicker, straight from the GPL:
These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.
The only way they can get around not GPLing their software is if it is independant and not distributed as part of a whole.
In a nutshell this means that the software must not completely depend on the library to function, it must be able to survive having that library removed and still able to operate or else is it not independant but dependant on the library. Also it cannot be distributed with the GPL'd library as part of a whole program which does NOT necessarily mean statically linked but in the same package! Be that tarball or CD-ROM.
If these two conditions are not met then the software must be bound by the GPL regardless of object or source code, static or dynamic library.
-- iCEBaLM
It's clear that allowing NuSphere to continue shipping code they have been shipping for the last seven months won't, by itself, do much more harm, if any, so the GPL issue was left alone.
Trademarks are another matter -- the more and longer they are abused, the greater the harm to the owner.
When the case itself goes to court, the text of the GPL will leave the judge little choice: NuSphere's product really is a derived work, and there is lots of case law about derived works, even with software.
For some background, see my letter to LWN last year. (Scroll down to the end. Incidentally, it appears I was the first person to tell Monty about this feature of the GPL.) Evidently it took this long to establish that NuSphere just wouldn't figure out where they stand without help from a judge.
Note that a library covered by a special exception of the GNU GPL must be made available with its complete source code under the GNU GPL. . Furthermore, a library covered by the GNU GPL can be modified and redistributed under the GNU LGPL According to section 1 of the GPL, any program which dinamicly links to a library which is released under the LGPL can be distributed non-commercially, but must include a written offer valid for any third party . Presumably, free software that uses non-free libraries is covered by the GNU LGPL Notice, incidentally, that a non-free program can be modified and redistributed under the GNU GPL . With this clarification, any program which uses a library which is released under the LGPL must be provided on a physical medium With this clarification, a library covered by a special exception of the GNU GPL can be distributed commercially, but must include a written offer valid for any third party . According to section 1 of the GPL, free software that uses non-free libraries is covered by the GNU LGPL According to section 1 of the GPL, any program which makes a system call to run separate programs which are released under a proprietary license can be modified and used internally without releasing it . So far, any program which is merely aggregated to separate programs which are released under the GPL must be made available with its complete source code under the GNU LGPL. Notice, incidentally, that a library covered by the GNU LGPL can be distributed commercially, but must include a written offer valid for any third party . With this clarification, any program which uses a library which is released under the GPL can be modified and redistributed under the GNU LGPL Analogously, any program which makes a system call to run separate programs which are released under the GPL is covered by the GNU LGPL . So far, any program which uses a library covered by a special exception of the GNU GPL can be distributed non-commercially, but must include a written offer valid for any third party It must be emphasized, once again, that a program released under the GPL can be distributed commercially, but must include a written offer valid for any third party . It appears that any program which is compiled by GCC can be modified and redistributed under the GNU GPL It may be, then, that any program which is sold commercially under the GNU GPL is covered by the GNU GPL . So far, any program which dinamicly links to a library covered by a special exception of the GNU GPL must be provided on a physical medium For one thing, any program which is merely aggregated to separate programs which are released under the GPL must be made available with its complete source code under the GNU GPL. . It may be, then, that a program which copies part of itself on its output is covered by the GNU LGPL Suppose, for instance, that any program which uses a library which is released under the GPL can be distributed commercially, but must include a written offer valid for any third party . Note that any program which uses fork() and exec() to invoke separate programs which are released under the GPL can be modified and redistributed under the GNU LGPL We have already seen that any program which uses fork() and exec() to invoke separate programs which are released under the GPL, with a special exception which allows linking proprietary modules under a controlled interface only must be made available with its complete source code under the GNU LGPL. . It must be emphasized, once again, that binaries you distribute for download must be licensed to all third parties under the GPL Nevertheless, the source code for all derivative works can be modified and used internally without releasing it . A consequence is that any program which dinamicly links to a library covered by a special exception of the GNU GPL must be made available with its complete source code under the GNU GPL. On our assumptions, a library covered by the GNU LGPL can be modified and redistributed under the GNU LGPL . Conversely, any program which is compiled by GCC is covered by the GNU LGPL A consequence is that any program which uses fork() and exec() to invoke separate programs which are released under a proprietary license must be licensed to all third parties under the GPL . Notice, incidentally, that any program which is sold commercially under the GNU GPL can be modified and used internally without releasing it A consequence is that any program which makes a system call to run separate programs which are released under the GPL, with a special exception which allows linking proprietary modules under a controlled interface only can be modified and used internally without releasing it . We have already seen that a library covered by the GNU LGPL must be provided on a physical medium The GPL says that a library covered by the GNU LGPL can be modified and redistributed under the GNU LGPL . A consequence is that all derivative works of free software must be licensed to all third parties under the GPL Nevertheless, any program which uses a library which is released under the GPL can be modified and used internally without releasing it . Furthermore, a GPL-covered program must be made available with its complete source code under the GNU GPL.
The FSF has posted an Affidavit of Eben Moglen on Progress Software vs. MySQL AB Preliminary Injunction Hearing. It is pretty good reading.
Clearly she didn't know or care that this is considered the big "test case" for this culturally iconic GPL. To her, this was just another license and copyright case. The question of whether the GPL is "valid" never came up; it was assumed to be as valid as any license. She knew, probably from the 200 pages of briefs she complained loudly about having had to read, a bit of the history and significance of the FS/OSS movements (when the MySQL lawyer began a diatribe about the importance of keeping software free, she interjected, "Yeah, yeah, I know, it's like a religious movement, it's Open Source!")
It was just as clear that she knew nothing about software and made no bones about it. She started out pronouncing the product in question "Mice Quill". (And then she has to deal with the plaintiff calling it "My Ess Cue Ell" and the defendant calling it "My Sequel"!) And, as has been remarked, when the MySQL lawyer used the phrase "single executable file," she interrupted and demanded that he clarify, "Is that like, when I click the icon for Microsoft Word Perfect, just one window comes up?"
However, like any good judge or lawyer, she was focused on avoiding time-consuming litigation with expert testimony and the like. She saw past all the technical arguments and FS/OSS crusading and recognized this case for what it was: a business relationship gone bad. She stopped in the middle of NuSphere's testimony and asked if the two businesses wanted to work together again. Both sides were taken way aback, there formed these two little clusters of suits as the lawyers and the company reps conferred; each lawyer in turn blustered for a minute about his client's demands and then said yes, they'd love to. (Significantly, this is where the judge got NuSphere to promise to take the EULA off their product.) Judge Saris then got her bailiff to get on the phone and find them a qualified arbitrator *right away* and offered them her courtroom for the rest of the afternoon. In essence, "Will you kids please just get a room and figure this out!"
It was a bit disturbing that she was so reluctant to see irreparable harm in letting a company abuse the GPL like NuSphere did and get away with it. I think that was mainly her wanting to avoid a long trial unless it proved essential, and making NuSphere quit using MySql would basically shut down NuSphere, and would thus require a long fierce court battle.
It is important that even cases like this, dealing with highly technical matters, be judged in a regular court by regular legal types with no prior knowledge of the field. Just like a case between a bricklayer and her construction company, or a musician and his record label. Because they need to be judged based on regular law, in proceedings comprehensible to an intelligent but uninformed outsider. If the judge had known the difference between static and dynamic linking, she would have been an industry insider and would have already had a bias one way or the other.
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