Alexander Terekhov wrote:
How come that judge Saris did NOT consider alleged violation of the GPL to be copyright infringement in MySQL v. Progress case, Hyman? http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
What in that document leads you to believe that? That ruling simply denies a request for a preliminary injunction against Progress, for the reason you quoted.
The judge is not applying a copyright law standard here (overtuned
> by the Supreme Court not long ago), which would have given MySQL an > automatic presumption of irreparable harm that it would be up to > Progress to rebut. It wasn't much of a standard even while it stood. Here's some discussion on the Patry blog: <http://williampatry.blogspot.com/2006/06/presumption-of-irreparable-harm-why.html> It concludes with In sum, the presumption of irreparable harm cannot be justified on a blanket basis, and if applied at all, is a mere burden-shifting device, not evidence. Once some contradictory evidence is introduced by the nonmoving party, the presumption vanishes. If plaintiff fails to introduce convincing evidence of actual irreparable harm, the request for injunctive relief must be denied. In this case, the plaintiffs had already presented the said contradictory evidence, showing that they had distributed the source code to their product. Therefore the proof burden of irreparable harm fell back onto MySQL.
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.
Automatic termination is the least convincing part of the GPL. I believe that one gets a fresh license with every copy, so automatic termination is cured by formally getting a fresh copy and then complying with the GPL upon distribution. Notice, however, that you have now yourself presented evidence of a US judge reading the GPL, understanding its provisions, and agreeing that they are legitimate - that not distributing the source causes a breach of the license. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
