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Judicial Order in MySQL AB vs. Nusphere Suit
bkuhn writes: "Judge Saris has ruled on the preliminary injunction motion. The Court recognizes in today's order that MySQL AB "seems to have the better argument" on the GNU GPL matter. The Court fully recognized the need for expert testimony at trial about the GNU GPL and the technical facts at hand, particularly as to why static linking of software components into a single, unified, compiled binary forms a derivative work of the original components."
I know this will be an unpopular viewpoint here, but I'm actually hoping for this to go against MySQL. The definitions of linking and derivative in the GPL are vague and confusing. Forcing the FSF to rewrite them or be given specific meaning by a judge would be tremendously helpful. This isn't as dangerous as it sounds because if the license is invalidated, users are granted no additional rights over a traditionally copyrighted work. So, code wouldn't be in danger of "escaping" in the meantime.
The GPL is not a good basis for truly free
software. If you want to make it free, then
put as few restrictions on it as you can. See
the latest 2-clause BSD license and contrast
that with the N-page GPL and no wonder BSD is
growing exponentially while *linux is fragmenting
and dying.
Not at all. Under copyright law, you have no right to include my code in your product without my permission. If you use my code without my permission, you're breaking the law. That is the default position from which the GPL (and all other source-code licenses) build.
When I place my code under the GPL, I'm giving you a limited right to copy it and include it in your work -- that is, a right to copy and include it in certain ways, for certain purposes. You don't get the right to include it in a proprietary, closed work. You don't get the right to lie to your customers and say that you wrote the whole thing.
The GPL doesn't create new restrictions upon your "right" to include my code in your product, because the default position under copyright law is that you don't have any such right. If you want to include it, all you need is my permission. The GPL just says "I give you limited permission. I give you permission to include my code in some kinds of products -- namely, GPLed ones. If you want to include my code in non-GPLed ones, you don't (yet) have my permission to do that."
Incidentally, there's no such thing as "violating the GPL." (Well, there is, but it would involve printing it out, rolling it up, and giving it to the goatse.cx guy.) If you include my code in a way that you don't have permission to, you are violating copyright law. It's exactly the same crime as if you included a copy of Microsoft Word in your code.
...NOT to have people suing the crap out of other people over software? The wording is right, the spirit isn't. However, I wholly agree with MySQL, they should have credit.
Just my $0.02...
--j0shua
I'm curious, how do you argue that something is or isn't a derivative work? Especially software?
Do you say: amount of code? Amount of useful functionality created by the code (ie, the GPL code is used to implement a menu item that is not used in day-to-day usage of the program.) Do you make some kind of "user confusion" argument?
If you have two expert witnesses, wouldn't it just be an argument of "yes it is" vs. "no it isn't"?
I really never thought of this and assumed that there was something in the software copyright laws or some precedent that spelled this out clearly.
As much as I like the GPL I really hope that the writer of the License isn't the one who gets to define "derivative work" (ie, maybe microsoft someday would like to make their license cover any computer yours networks with, or something silly).
Agreed.
Therefore you are "forced" to distribute every other component under the GPL if you want to use the library.
Well, then you must agree that in order to use Windows, I am "forced" to pay Microsoft money. Or that in order to drive a car, I am "forced" to buy gas and therefore support Middle Eastern governments.
Force as defined by Websters dictionary is:
Force \Force\, v. t.
I hate to be a prick about it, but obviously, forced is not the right word for this situation. Choose is a better word to use. Your logic is better written as:
if you choose to use the library then you have to also choose to distribute every other component of your product under the GPL.
It's a mutual decision. It's like if I choose to have sex, I also have to choose to take the responsibility of also getting a woman pregant.
There is a significant difference between making a choice and being forced into something.
int func(int a);
func((b += 3, b));
Actually, you can use all the GPL code you want on your web site and never tell anyone.
Its only when you try to package and distribute GPL code that you are required to make the code public and submit any modifications back to its owner.
No, Thursday's out. How about never - is never good for you?
Back in 1996, Judge Saris made a common sense rulingin the case of State Street Bank vs. Signature Financial Group. In sumamry, SFG claimed that they had a patent on "multi-tiered" mutual funds and the software to manage it. Judge Saris ruled that the patent acquired by SGF was so broad, that no mutual fund company could do business without paying a royalty to them.
:-)
Expect a common-sense ruling from her in this case as well.
Where was she when the "1-Click" patent was challenged?
But is this using copyright to restrict rights beyond the intention of copyright law?
That's easy: No. Absolutely not.
"Why?" Well, I'm glad you asked.
Because copyright does not give you the right to create derivative works based on someone else's code and distribute the derivative. It specifically denies that right by reserving it for the creator. The GPL gives you that right -- a right you would not otherwise have -- with a restriction. If you can accept the restriction, you get more rights. If you cannot, your rights are the same as they would be under pure copyright. How could a license which either increases or leaves unchanged your rights possibly be considered "restricting rights beyond the intention of copyright law"? It can't.
The enemies of Democracy are
More than anything else, I'm looking for a ruling somewhere, somehow that manages to draw nice lines around where a program starts and ends for copyright and patent purposes.
We have APIs, libraries, modules, remote function calls, socket connections, pipes, shared memory, and a whole host of different ways in which code A communicates with code B. What we really need to define in a legal sense is exactly what constitutes a "program" for the purposes of code use. I definitely want to be able to isolate code which can potentially restrict "my" code's licensing (whether through a patent, restrictive copyright, GPL, or whatever). Until we get a good definition of what is "external" to a program, this will remain a legal quagmire.
Honestly, it's a hard decision. But it needs to be made. And the sooner, the better, for all parties: Free Software, Open Source, and Proprietary.
-Erik
There are always four sides to every story: your side, their side, the truth, and what really happened.
I'm curious, how do you argue that something is or isn't a derivative work? Especially software?
I'm curious whether they might consider the linked object to be a "compilation" in the literary sense - i.e. a collection of separate works published together without significant modification to each, such as an anthology.
As much as I like the GPL I really hope that the writer of the License isn't the one who gets to define "derivative work" (ie, maybe microsoft someday would like to make their license cover any computer yours networks with, or something silly).
Rule of thumb: When one side writes the contract, the courts construe the words as much in favor of the other side as possible. It's up to the author of the contract terms to make them clear, understandable, and legal.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
This isn't copyright law extended, but about the nicest version of copyright you'll ever see.
If you don't want to use my code FOR FREE, then you can write your own, otherwise you have to agree to the terms I license it under, which says, anything you link must also be open source. Simple. Folks need to remember that the GPL makes good sense even from a moral standpoint, in addition to a legal one.
Do you even get a CHOICE about using Adobe code? Do you even get to SEE Apple's midi playback mechanisim? Not a chance!
So how in the world does a license which gives you MORE rights then you would EVER have under copyright law, "restrict rights beyond the intention of copyright law".
Especially if that license gives you the choice to use the software FOR FREE, to change the source code FOR FREE, to fix bugs, and distribute THOSE changes, FOR FREE, without even having to say thanks, or deal with an army of lawyers.
And folks forget, the license protects you from things like Oracle's stunts, whose license PROHIBITS you from even properly reviewing their product without getting permission from them.
So give us all a break. You should try licensing something that is not under the GPL sometime, you'll be signing a 40 page document that costs a small fortune (literally, source code access costs incredible amounts) that you'll have to hire a lawyer to understand.
Personally, I'll take the CHOICE to deceide what I want to do over no choice at all.
Not at all. You have the same fair-use rights with respect to a work licensed under the GPL that you have with respect to any other work. For instance, you have the right to publish reviews of a GPLed work, to quote briefly from it in doing so, etc. Nonetheless, nothing under fair use can give you the right to distribute someone else's work, whole and entire, as a portion of your own, and without that person's permission. That is what is involved in static linking of a library into a compiled program.
Naturally, there might be several issues involved in what you propose, since what you propose is unclear, and made less clear by the vagaries of your grammar.
Do you propose, for instance, that you may download a copy of a closed-source program, make modifications to it, and distribute your modified version without the original creator's permission? I disagree; that strikes me as an obvious offense against the author's copyright in the work. A comparable offense would be for to take Frank Herbert's Dune, rewrite the ending, and publish the resulting work without the permission of the Herbert estate (the copyright holder).
By mentioning Netscape, Mozilla, and Galeon in particular you seem to be deliberately blurring the issue. Netscape Navigator is a piece of freely redistributable binary-only software (aka "freeware"), but the copyright holder does not give you permission to distribute derivative works. Mozilla, on the other hand, is a piece of open-source software (aka "free software"), wherein the copyright holder gives you limited permission to distribute derivative works. Galeon, as I understand it, is a legally made derivative work of Mozilla and of the GNOME libraries.
"Agreement to the GPL" is not relevant. The GPL is not a contract or "license agreement" which you may accept or reject. It is a unilateral grant of limited permission. If I place a piece of work of mine under the GPL, I am not proposing a contract to you, nor to the general public. I am granting permission to you and to the general public to do certain things with my work which would otherwise be illegal for you to do. The permission I grant is limited; I am not giving away all of my exclusive rights regarding my work. But I am granting you something (my permission) and I am not asking anything in return.
Yes, you read that right: I am not asking anything from you in return. After all, what would you have to give? It is a common misconception that you are "giving" me your "agreement" to only copy or distribute my work under the terms of the GPL. However, your "agreement" in this regard is not necessary. The GPL is the limit around the permission I have granted you. If you stray beyond its terms when copying my work, then you aren't "violating the GPL" -- you are simply copying and distributing a copyrighted work without its copyright holder's permission. In other words, you're violating copyright law. And by agreeing not to violate the law w.r.t. my works, you certainly wouldn't be giving me anything I didn't already have.
To clarify: When I release a piece of my work under the terms of the GPL (in common parlance, when I "GPL my work") I am not giving you the copyright over my work. That I retain. I am not giving you unlimited permission to copy my work. I am not contracting with you, or proposing a contract. I am simply giving you very carefully limited permission to copy and distribute my work.
I suspect that you do not know what the expression fair use means. It does not mean, and has never meant, "I think my use is fair; therefore, what anybody else thinks does not matter." It means that copyrighted works may be used for certain purposes (namely "criticism, comment, news reporting, teaching, scholarship ... research ... [or] [p]arody" according to chillingeffects.org) without infringing on copyright.
For you to create a derivative work from the GPL (which is a copyrighted work of the FSF) and publish it as a license to your software would not fall into any of those categories. Publishing it as a parody or a critique of the GPL might, I would strongly hope (though I am not a lawyer and this is not legal advice). But the GPL itself is a copyrighted work, you don't have any right to coöpt the efforts and research of the FSF legal counsel by making knock-offs of the GPL without the copyright holder's permission.
If you believe that the invalidation of the GPL would allow you to relicense GPLed works under your choice of license, you are deluding yourself. In the absence of the GPL, those works revert to normal copyright protection -- the same as protects Dune and Microsoft Word. If the GPL were ruled invalid, you would be no more justified in distributing copies of GNU Emacs than you would in running off your own print run of Dune.