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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!
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.
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.
* * Always question "the National Interest" - 9 times out of 10 it is a cover for evil
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).
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.
Comment removed based on user account deletion
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).
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.
___
If you think big enough, you'll never have to do it.
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.
OMFG!
Did you just link to the GPL? Dude, I have a cron
job the searches my harddisk for the GPL and deletes it, incase I have
installed new software.
Infact, the perl script invoked by cron not only
does look for the name "COPYING", it also does an
MD5 checksum, and knows about the finger prints of
both GPL versions.
The next release will be network enabled, and we
are aiming for a full blown web crawler, of google
proportions, that does nothing but exploit servers
and delete GPLs.
The world needs only ONE GPL, in Stallman's box, and
the rest of us can symlink to it.
--
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?
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.
Comment removed based on user account deletion
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.
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.
Fear: When you see B8 00 4C CD 21 and know what it means
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.
Fight for your right to read books!