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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.
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?
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