On 7/30/05, Raul Miller <[EMAIL PROTECTED]> wrote: > I count four issues the judge considered, with a bit of detail on each > of those issues.
I didn't say six "issues". I said "six reasons why it would be inappropriate to grant a preliminary injunction for breach of the GPL terms, any one of which would have been sufficient." Let's walk through them together. > 1) Likelihood of success: Here, the judge discussed the dynamic > linking issue, said that MySQL would probably win, but that the issue > was in dispute. That's not what the opinion said. The two sentences are: "Affidavits submitted by the parties' experts raise a factual dispute concerning whether the Gemini program is a derivative or an independent and separate work under GPL para. 2. After hearing, MySQL seems to have the better argument here, but the matter is one of fair dispute." And as such not suitable for judgment as a matter of law. Note that the facts of the case involved: - an essentially _undocumented_ _internal_ interface to which no other outside party had AFAIK ever implemented; - deceit on Progress's part about whether they included the full source of mysqld as distributed on their release CDs (they didn't), and deliberate use of _static_ linking and failure to provide even a binary version of the Gemini table type as .o or .a, leaving customers unable to build a bug-fixed mysqld without losing the table type; - large cash payments from Progress to TCX DataKonsult (predecessor to MySQL AB) which were reported at the time as "financing" TCX's move to the GPL -- and hence extensive negotiations between the parties about what conduct they both understood the GPL to demand of Progress. Despite all of which, the matter remained one of "fair dispute" that could not have been resolved at the summary judgment stage even if MySQL's case had been otherwise flawless. So that's blocker #1. #2 was that, even if the evidence had originally been adequate to support the "likelihood of success on the merits" prong, the judge was not "persuaded based on this record that the release of the Gemini source code in July 2001 didn't cure the breach." So much for the "automatic termination" clause. > 2) Potential for irreparable harm: [This is what i was talking about.] > The judge listed a number of particulars about why irreparable harm > was not likely. Blocker #3: "In any event, even if MySQL has shown a likelihood of success on these points, it has not demonstrated that it will suffer any irreparable harm during the pendency of the suit ..." The judge is not applying a copyright law standard here, which would have given MySQL an automatic presumption of irreparable harm that it would be up to Progress to rebut. As well she shouldn't have; as there were no sufficient grounds for rescinding the contract, no claim of copyright infringement could succeed. And MySQL was unable to make a showing on the facts that they would suffer _any_ harm during the pendency of the suit, let alone harm that could not be repaired through monetary damages after the fact. > Of particular importance were sworn statements made by Progress > that the source code had been released and that the conflicting > license requirements were being withdrawn. (This is what I was > talking about, above -- the issue was basically resolved at the > time the judge wrote that order.) "... particularly in light of the sworn statement that all source code for Gemini has been disclosed and the stipulation, given by Progress during the hearing, that the end use license for commercial users will be withdrawn." That would be blockers #4 and #5; either of these voluntary stipulations (nothing to do with a consent decree) would be enough to void the "potential for irreparable harm" prong of the preliminary injunction test, since proving harm would require both a means by which Progress could extract customer revenues that "should" have gone to MySQL (difficult if MySQL, along with the rest of the world, also has Progress's source code) and an intention of continuing to do so (difficult if Progress abandons the practice of charging for end-user licenses). > Perhaps, when you say there were six reasons, you've broken > this issue down into several pieces? > > 3) balancing of relevant equities: This favored Progress as > suspending distribution of Gemini would have destroyed them. Blocker #6: "Finally, because the product line using MySQL is a significant portion of NuSphere's business, Progress has demonstrated that the balance of harms tips in its favor regarding the use of the MySQL program under the GPL." This is the third prong of the preliminary injunction test, and MySQL failed this one too. Even if they had demonstrated a likelihood of success on the merits and a probability of "irreparable" harm if Progress were not immediately enjoined, Progress's position was such that an injunction would do them greater irreparable harm -- and in a contract (not tort) action, that means no injunction. This, too, would have been automatically given to MySQL if this were a copyright infringement case. > 4) the effect on the public interest: since the copyright issue > was basically resolved, this didn't get much discussion. It didn't get much discussion because the only person who claimed the public interest was in any way affected was Eben Moglen (in his affidavit), and the judge wasn't buying. This prong is sometimes deemed sufficient to override the other three -- but not in this case. > > And it was implicit in the structure of the decision that she rejected > > both the notion that the GPL is a creature of copyright law and the > > plea in Mr. Moglen's affidavit that the "automatic termination" > > clause was central to its "enforcement". > > Eh... it was explicit in the decision that the copyright breach had > largely been repaired. > > So, yeah, in contexts where the breach is repaired, the automatic > termination clause can get ignored. There's no such thing as a "copyright breach" and you can't "repair" copyright infringement. MySQL had a plausible (but not proven) case that Progress might have been at one time in breach of the GPL's contract terms. But in order to justify rescission of the contract, the breach would have to have been 1) proven, 2) not repaired by subsequent conduct, and 3) not just material enough to justify damages but of a nature such as to "strike at the heart of the contract between the parties". These are proper contract law standards and neither the "automatic termination" language, nor the claim to be a "copyright-based license", nor Eben Moglen's plea on behalf of his enforcement weapon swayed the court. > > Had she taken either of these propositions even a little bit > > seriously, she would (as she well knows) have been obliged to analyze > > the request for preliminary injunction according to a completely > > different standard. > > This would be rather pointless given that Progress seemed to > be committed to repairing the breech. If this were a copyright infringement case, the judge's opinion would contain boilerplate language about "automatic, rebuttable presumption of irreparable harm" and a citation to whatever is the usual First Circuit opinion acknowledging that standard in copyright cases. (It's possible that said citation will be from another circuit, such as Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983), which appears to be used for this purpose in several circuits.) And whether or not the outcome would have been different, the text of the opinion certainly would have been. I harp on this point because it's unambiguous evidence that at least one federal judge not only doesn't buy "copyright-based license" but won't even give it the time of day. > > Oh, they may well know the truth (as I understand it); but if so, they > > do not choose to advertise their knowledge. Alternately, if they have > > a foundation for their claims that my amateur archaeology has been > > unable to unearth, they seem to have no desire to expose it to public > > scrutiny. Why should they, when widespread belief in the accuracy of > > their interpretation gets the job done anyway? > > As usual, you're implying a lot with what you say, but actually saying > very little. Let me try again. Eben Moglen has a J. D. from Yale. He has been admitted to the bar in New York and before the Supreme Court. He has clerked in district court and for Justice Thurgood Marshall. He has held a professorship of law and legal history at Columbia for over a decade. He is not ignorant of the law. It is my opinion that he knows damn well that there is no such thing as "copyright-based license" and never has been. It's very useful as a propaganda device to make it appear that there is some rich vein of unmined law in this area, and therefore some difficulty in applying the mountain of case law relevant to any given fact pattern involving the GPL. But the truth as I see it (and I am not alone) is that the GPL is a somewhat unconventionally drafted but otherwise completely routine contract of adhesion. If this is in fact the truth, then many of the things that he, and other attorneys closely associated with the FSF, say in public about the GPL are untrue, perhaps even deliberately misleading. That doesn't inspire my respect. Is that a bald enough statement for you? Cheers, - Michael (IANAL, TINLA)