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.

Comments

More on the NuSphere case

[Anonymous Coward]

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.

Nusphere fixed the issue

[topham]

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.

Re:Nusphere fixed the issue

[yamla]

Nusphere fixed the basic issue here; they no longer distribute without source code.

Assuming this is true (I have read conflicting reports), the GPL does not actually allow you to 'fix the basic issue' and then continue on as you wish.

Section four of the GPL states:

You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Once Nusphere initially released without source code (they claimed source would be available later), they were, strictly speaking, in violation of the GPL and by section 4, automatically terminated any claims to a license that they had.

Now, most reasonable companies would allow them to get into compliance with the GPL, then drop the matter. MySQL decided not to. While I do not agree with this action, it is, strictly legally speaking, the right thing for MySQL to do in this situation.

Fat Lady Not Sung

[Euphonious Coward]

This is just a hearing about a preliminary injunction, nothing final. The questions considered are not who's right or wrong, but how much harm is being done leaving by leaving matters alone until the case is over.

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.