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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.
IMO, this is a very nasty detail that's left hanging in the license, and should be fixed in the next version. If nothing else, the license should explicitly say that you lose all rights to use the software "until you are granted explicit permission, in writing, by the original author", or something similar.
The judge seemed to weigh that putting NuSphere out of business was a big deal in the "balance of harms" and didn't see clearly what the "irreperable injury" the other way was. As Jack Valenti would say, if Nusphere has based their business model on piracy, then they should be imprisoned, not just slapped with an injunction.
The GPL is not a gift. It is a barter offer: I allow certain carefully constrained uses of my IP and in return you offer any intellectual property you create some as a result of my good will back to "the pot". In software development, time is a critical element: if one competitor can benefit from the IP of the other and mix in its own IP without disclosure, then the cheater has gained an unfair advantage. If its cheating is part of a business venture, then its entire profit stream is usurped from the good faith party as a direct result of its bad faith dealings.
For this reason the GPL essentially says "if you ever cheat, you get the death penalty". Without this clause, freeloaders could perpetually use gamesmanship and delaying tactics to obtain competitive advantage in the bartering of "hot" IP. To assure that bad faith cannot usurp the original author's valuable IP contributions, the GPL revokes all rights for the smallest infraction in order to assure that any "negotiation" will occur with the position of strength emphatically given to the original author.
The irreparable harm inflicted by not issuing an injunction is that NuSphere can continue to profit from a business model that is based on outright theft of intellectual property. The moment they were notified of GPL noncompliance, section 4 of the GPL revoked their licence. They are distributing and indeed modifying a copyrighted work in direct defiance of the authority of the copyright holder with the intent to profit. That is not only irreperable harm, it is stealing, and it is CRIMINAL if it is done willfully (17 USC 504).
NuSphere is purposefully trying to confuse the issue with their code linking argument. The copyright in source code is completely separate from the copyright in object code. That is old hat.
Even if the source code is not "integrated", when the result of compiling is an indivisible executable object code, the result is a derivitive work. If I write a library and you use it, the resulting object code is a derivitive of both source files. The GPL specifically mentions and includes this case. The LGPL is offered as an alternative when the harsh consequences of the GPL are not what the author desires. End of story.
I have full confidence that the DMCA will be destroyed in court - it just takes time for a good test case to come to light
What was wrong with MPAA v. 2600? Or the Felten case? Or the Sklyarov/ElcomSoft case (though that has yet to come to trial)?
In case you don't remember, in the 2600 case, the DMCA came up, and free speech got reamed.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Yes, but dynamic lining does NOT produce indivisible executable object code. I understand that NuSphere was statically linking, so they're in the wrong undoubtedly. But the point I'm raising is that you can dynamically load a shared object (ie, libmysqlclient.so), from a proprietary piece of software, without running afoul of the GPL.
:))
All your source -> your executable
All GPL source -> GPL shared library
When your executable runs, it then loads the GPL shared library in order to have access to the required object code. If it doesn't find it, it has unresolved symbols and craps out. It is, therefore, clearly dependant upon that shared library, but it is, by the same token, clearly NOT a derivative work, since 'your executable' is derived without any GPL source code.
The static executable under GPL is a clear cut violation. But that leaves static binaries under the LGPL (I'm unsure), the dynamic under the GPL (unsure, think legal), and dynamic under the LGPL (must be legal -- hell, what would the LGPL be good for if it wasn't?
Comment removed based on user account deletion
From Adam Kessel's Comments:
[The Judge] seemed to think "linking" code was analogous to hyperlinks on the web
In the case of dynamic linking, isn't it? I can link your graphic from your web server inside my web page. In both cases I'm telling the software (either a browser or the OS) where to go to get the rest of the relevant information. In the abstract sense, how is dynamic code linking unlike web linking?
It seemed like she [...] had trouble seeing how [immediate and irreparable injury, loss or damage] was the case
This is the clincher for pretty much any temporary injunction filed based on the GPL. The GPL requires that no money can be due to authors of the work for its use. No money, no damages. No damages, no injunction without a full blown trial.
The only way I can see to get around this would be to offer the software under a dual license where the second license required significant remuneration. That way you could argue that if they failed to comply with the GPL then the second license applied, which would mean a breach involving a lot of unpaid cash.
<Rant On>
Why are we fighting this fight anyway? If we as software developers choose to give our stuff away for the common good, what does it matter if someone who doesn't share our values manages to make a buck or two off of it? If the Open Source / Free Software doctrines are sound, then such folks are going to lose in the long run anyway. Its not as if there is a shortage of folks out there who are willing to be a part of this without being forced. Not for the better part of a decade.
Think about it: If Microsoft could swipe the Linux kernel, wrap Windows around it, and sell it without the source, what would the fallout be? Millions of users would see a more stable and secure operating system, hardware manufacturers would have an easier time of providing drivers for Linux (since they would be essentially the same), and Redmond would be financially motivated to keep coming back to the core linux source tree rather than a single-shot fork. Socially, Linux in the public domain would be far more powerful than Linux under the GPL.
Besides, saying that I "freely" offer you my stuff but you must subscribe to my social values to get it seems a little like a 21st century version of Marxism. Who do we think we are that we should have such power? Wouldn't we be better off to just release in the public domain?
<Rant Off>
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.