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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.
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.
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).
Comment removed based on user account deletion
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.
--
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.