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NuSphere vs. MySQL AB Hearing

Posted by michael on from the legal-wrangling dept.

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.

7 of 184 comments (clear)

  1. Technology and Judges by Max+the+Merciless · · Score: 3, Insightful

    It seems there is a desperate need for some tech savvy judges. Perhaps a "Court of Technology" should be established.

    The current system seems kinda like slashdotters passing judgement on the latest fashions from Paris.

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    * * Always question "the National Interest" - 9 times out of 10 it is a cover for evil
    1. Re:Technology and Judges by mpe · · Score: 3, Insightful

      When you have 2 opposing parties with an arguement, a judge who doesn't understand the arguement is useless.

      Rather the judge is incompetant if they attempt to make a ruling when they don't understand the case. All he or she has to say is something to the effect of "If you can't explain your arguments to my understanding I'm dismissing the case."

  2. Comment removed by account_deleted · · Score: 5, Insightful

    Comment removed based on user account deletion

  3. Yes, you did miss something here by RelliK · · Score: 3, Insightful

    Kessel is exactly right: you cannot sue on someone else's behalf. So FSF cannot, for example, sue NuSphere on MySQL AB's behalf. (They can, however, testify as an expert witness). That is the reason FSF requests the assignment of copyright, contrary to what certain trolls claim.

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    ___
    If you think big enough, you'll never have to do it.
  4. Amend the GPL by bwt · · Score: 4, Insightful

    It might be a good idea to add a little bit to the GPL regarding the "death penalty" provision.

    Specifically, I would propose that use of GPL software be conditioned on legal stipulation of the proposition that continued violation of the terms of the GPL after notification is "irreparable injury" because it is theft of intellectual property.

    Similarly, you should have to stipulate that the "balance of harms" of a violation is completely in favor of the author, and that this applies regardless of any business interest that exists as a result of the exploitation of the licence. The author offered a zero-cost good faith licence to use and extend their IP subject only to the condition that IP extentions be returned to the commons on demand. In many cases the GPL'ing author makes this deal believing that it will produce more value than retaining tight proprietary interest and selling the software for its market value. If someone else builds a business by skirting the extremely minimal requirements of the IP barter arrangement, then any revenue stream that results should be viewed by stipulation of the licence as being misappropriated and unjustly earned. Indeed pirated or stolen.

    Thirdly, I would propose that the section 4 "death penalty" provision be made substantially more blunt. In particular, a "take down" process should be invoked (somewhat like the DMCA provision) that says if you recieve a letter of noncompliance from an author that your rights cannot be restored other than by a written order of the author, an arbitrator (see below), or a judge. Some people have noted that if you receive another copy that the licence can be read to re-grant a new and separate licence. All such weasle room should be removed by stating that this doesn't apply if you're licence was revoked for noncompliance.

    Fourthly, I would propose that the licence should designate that any disputes be settled by arbitration by the FSF or by the EFF if the FSF is a party with the loser to bear all reasonable costs incurred by both sides.

  5. Section 4 isn't the end of it by throx · · Score: 4, Insightful

    While Section 4 states quite clearly that if you break the GPL (which, let's assume they did for now) then all rights to distribute under the contract you entered into with the license are revoked.

    That's not the end of the story as most people seem to be professing. The real issue comes when someone from NuSphere downloads ANOTHER copy of MySQL including the source, especially if this is a newer or later version or if they obtained it from a different party. Does this new download constitute a new contract between the parties, and if so then all a GPL violater has to do is download a new version and/or download from a different source and wham - new license, new contract, all sins are forgiven.

    Failing that argument, the (rather simple) alternative is to create a new and independant legal entity, assign all your IP rights to the new entity (including the trading name) and the new entity downloads a new copy of the source and is immediately in compliance with the GPL.

    The real danger here is that the GPL may and probably does have a "built in automatic forgiveness" clause. If you break the GPL then it seems likely that bringing yourself into compliance and relicensing is a trivial exercise.

    Note: IANAL... I did see one on TV once though... In Australia... It was a British show... Ahh whatever.

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    Fear: When you see B8 00 4C CD 21 and know what it means

  6. Re:Irreperable Injury by bwt · · Score: 3, Insightful

    And in every one of the cases, the infringed party has stood up and used words like "theft". It's called advocacy -- use the words that make your case sound strongest.

    By the way, by 17 USC 504(a)(1), if NuSphere's actions were "willful" then they are in fact criminal.