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."

Comments

"seems to have the better argument"

[Pinball Wizard]

jeez, I would say so. They wrote the program, they hold the trademark. It's theirs. They have every right to say how their name is used.

If you don't like the way someone runs their GPL project you have one choice: fork it, and call it something else. But if NuSphere wants to sell "NuSphere MySQL" I would think it would be in its best interest to respect the trademark and hard work of its owners and inventors.

Re:"seems to have the better argument"

[QuantumG]

The "better argument" claim was made in regards to the GPL enforcement issue, not the trademark issue. The judge was indicating that MySQL's claim that NuSphere violated the GPL is more believable than NuSphere's claim that they didn't.

Linking

[Anonymous Coward]

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.

Re:Linking

[lkaos]

The wording is definitely ambiguous. In fact, the GPL FAQ even has this question that addresses what constitutes aggregation between a GPL'd program and a non-GPL'd program.

Essentially, noone is really sure how far the GPL extends. I think linking is pretty straight forward but there are other things that are a little sketchy. I think we are due for a GPL v3.0.

If users lose rights from the GPL being thrown out, then that could potentially be very bad. I know in a lot of corporate environments, if the GPL was thrown away and an author couldn't be contacted, a lot of work could potentially become invalid due to licensing problems.

Set that precident

[QuantumG]

why static linking of software components into a single, unified, compiled binary forms a derivative work of the original components

Yes, a lot of us are curious about that too. It is clear that something is derivative if it "contains" the functionality of something else, but is it Just that the licensing agreement of a minor, or even insignificant, part of the derivative work should dominate the remaining portions? For example, if you're writing a program which decodes and formats web pages and you want to include a mechanism for playback of midi files, using a library distributed under the GPL is an impossibility, because even tho it might make up less than 1% of the total code of the product, linking to the library will force the terms of the GPL onto each and every other component. This is what the GPL says - if you dont like it, dont use the software. But is this using copyright to restrict rights beyond the intention of copyright law? And like the claim that Napster made about the RIAA, does the GPL try to "use their copyrights to extend their control to [new markets]?" Guess we have to hold our breath and wait.

Re:Set that precident

[lkaos]

It is clear that something is derivative if it "contains" the functionality of something else, but is it Just that the licensing agreement of a minor, or even insignificant, part of the derivative work should dominate the remaining portions?

It's not that the license of a small portion of the work is dominating the work. Rather, it is that the only right one has in redistributing that small portion of code, is if he agrees to all the terms of the license. In this case, the license explicitly states that the rest of the product must also carry the GPL license. It is not that the GPL causes the rest of the product to be under the GPL, but that one has no legal right to be distributing that subcomponent unless the rest of the product is under the GPL.

Many people mistakenly refer to the GPL as viral. That gives the false impression that the GPL 'forces' other products to adopt the license. That is not true though. It's sort of like a software company saying that in order to use a certain library commerically, the library user must pay a certain royality. In this circumstance, that royality is the assurance that the code using the library is also under the GPL.

Re:Set that precident

[Frater 219]

For example, if you're writing a program which decodes and formats web pages and you want to include a mechanism for playback of midi files, using a library distributed under the GPL is an impossibility, because even tho it might make up less than 1% of the total code of the product, linking to the library will force the terms of the GPL onto each and every other component. This is what the GPL says - if you dont like it, dont use the software. But is this using copyright to restrict rights beyond the intention of copyright law?

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.

Re:Set that precident

[augustz]

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.

Re:Set that precident

[Frater 219]

Bull. You are forgetting about fair-use.

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.

If I found a program like 'Netscape' freely available for anyone to download on the internet, is there anything illegial about making a new frontend for it that enhances 'Netscape' (such as Galeon does with Mozilla)? You might say I don't have any right to do that, but it's just not clear if I do or not.

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.

The interesting thing about the GPL is that most projects don't FORCE you to agree to it.

"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.

Of course, I believe that not allowing you to change the GPL license itself (very un-GNU-ish) violates fair use by itself. (It's just a document, as long as you give credit, it should be perfectly legal.)

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.

Mind you, if the judgement turns out like I believe it will, I'll be the first downloading all the GPLed software I can, and making it freely downloadable under it's non-binding GPL v2 license!

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.

Re:no wonder *linux is dying

[lkaos]

Many people complain that the GPL is not truly free.

That is mainly because of a misconception about what 'free' is. Modern theories of democracy are based on the concept of inalienable rights (see Locke or US Declaration of Independence). Inalienable rights are inherent rights that cannot be abandoned or taken away. For men to be free, they must ensure that these rights exist and are protected (hence, the need for government).

The GPL essentially defines the inalienable rights of software. As men have the rights of life, liberty, and the pursuit of happiness (or in their possesions if you are more Lockean), software has the right to be modified, redistributed, and derived from.

To simply grant these rights with no mechanism to preserve them would go against the fundamental principles of democracy. The GPL protects software not only from giving up it's fundamental rights.

But, the original author also has the choice under which license to distribute the work. He may choice to abandon certain rights. The important thing though, is that it is his choice and his choice alone.

I'm sorry, one simply cannot make the argument that the GPL is philosophically less 'free' than the BSD license. It's just not true.

BTW: If you consult the Unix History Tree, you will see that BSD is arguably older than Linux (the NetBSD base surely is).

BSD is not growing exponentially and Linux is surely not fragmenting. BSD's growth is also probably more related to the high quality of their operating system and less because of their license.

The BSD license is scary. If I had any intention of releasing my code so that it could be reused commerically without my permission, I would simply put in under the public domain. Of course, I'm not a communist, so there is little chance that I would ever release code in such a way.

Re:Potato Potato

[lkaos]

if you want to use the library then you have to distribute every other component of your product under the GPL.

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.

To obtain or win by strength; to take by violence or struggle; specifically, to capture by assault; to storm, as a fortress.

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.

I'm glad it's Judge Saris hearing the case

[Innominate Recreant]

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? :-)

What I want, is a decision on what a program is...

[trims]

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