On Thursday 05 September 2002 10:57 am, Pablo Manalastas wrote: > BTW, has the GPL ever been invoked in an actual court case > and has it ever won?
IIRC, the first time the GPL enforcement was brought to trial was in the MySQL AB vs. Nusphere (a Progress Software Company) case. MySQL AB accuses Progress Software of enhancing MySQL with row-locking technologies but didn't give back the source code for their hacks. The database technology for row-locking has been in Progress Corporation's proprietary database for a long-time (versions 4 to current, IIRC). I don't know really if the accusations by MySQL or Nusphere is indeed true. I've been trying to follow-up the case. Don't know if both agreed to settle, or what. I'm a Progress database application developer and database administrator for about 4 years. Personally, I'm sad both companies came to this sad state of affairs. Progress could have infused MySQL with much needed technological advantages, and MySQL could have strengthened this technology even more with much needed open-source peer-review and scrutiny. mikol Here are both articles: --------------------------------------------------------------------------------------------------------------------- GPL enforcement goes to court for first time in MySQL case By Tina Gasperson, Newsforge.com Posted: 27/02/2002 at 03:18 GMT MySQL AB, the originator of the MySQL GPL database, is taking Progress Software Corporation, the corporate parent of NuSphere to court because it continues to distribute a database product that links statically to MySQL's code. The product was originally released without the accompanying source code. The Free Software Foundation's chief legal counsel, Eben Moglen, is set to provide expert testimony in a hearing Wednesday at 2 p.m. in what is the first court test for Richard Stallman's GNU General Public License. (The FSF has issued a press release and a copy of the affidavit.) That's a "garden variety" violation of the GPL, Moglen says. Additionally, "We don't expect to have any problem enforcing the GPL in this situation," says Bradley Kuhn, FSF's vice president. Normally, he says, the Free Software Foundation conducts private enforcement of GPL violations on software that it holds the copyright on. In this case, MySQL retains the copyright on its GPLed apps, and the FSF is simply providing expert testimony in what is expected to be an easily-gained temporary injunction against the further distribution of NuSphere's version of MySQL. NewsForge obtained a copy of the 12-page affidavit Moglen filed in advance of his testimony, and in it he says that he thoroughly tested version 2.2 and 2.3.1 of NuSphere MySQL Advantage, the product that uses Gemini in apparent violation of the GPL. He says that 2.2 violates provision No. 3 of the GPL by not providing source code and only promising that it would be released at a later date. But in his review of 2.3.1 he found "the source code was fully available." He states that he was also able to compile the source code into machine readable language, and that the wording about releasing the source at a later date had been removed from the manual. However, says Kuhn, when NuSphere violated the GPL the first time, it lost its right to redistribute the code in any form, according to provision No. 4 of the GPL. Normally when the FSF privately enforces the GPL, it forgives a company's violation when it corrects the error. However, under the GPL, such forgiveness is not required. MySQL AB has so many other issues with Progress and NuSphere that it is electing to press a case against its adversary. On June 28, 2000, MySQL AB announced it was GPLing MySQL, an Open Source database that is considered the standard by many. At that time, Progress Software happily announced it was forming a company called NuSphere, which was to be the Open Source arm of its formerly all-proprietary business. Progress said that NuSphere would contribute code and up to $2.5 million to further the "progress" of MySQL. NuSphere ended up providing $312,501, according to MySQL AB, before a feud that ripped their collaboration apart. According to MySQL, NuSphere simply forked the MySQL project, created the Gemini software and linked it statically to MySQL code, but didn't release Gemini under the GPL. NuSphere also registered the mysql.org domain, a move that some saw as a slap in the face to the originators of MySQL. For its part, NuSphere says that MySQL has refused to cooperate in the spirit of an agreement they made at the time of the GPLing of MySQL. NuSphere officials say that MySQL AB has refused to accept code changes from NuSphere. Of course, MySQL denies that NuSphere has submitted any code. NuSphere CTO Britt Johnston was unavailable for comment at press time, but in a NewsForge report in July 2001, Johnston said that NuSphere was releasing a version of Gemini under the GPL. The report also included details about another version of Gemini that the company was keep proprietary. "NuSphere will continue to offer Enhanced MySQL that contains a commercially licensed version of the Gemini component that is a bundle of performance, support, and maintenance improvements desirable for deployment of commercial applications," he said. Bruce Perens, founder of the Open Source Initiative, has offered to become a moderator in the case if one is needed. "Moglen will get his injunction," he says. --------------------------------------------------------------------------------------------------------------------- Judge blocks route to GPL legal test case By ComputerWire Posted: 05/03/2002 at 07:53 GMT Attempts by the Free Software Foundation to turn NuSphere Corp and MySQL AB's contract dispute into a legal test case for the GNU general public license (GPL) seem to have fallen at the first hurdle as the judge hearing the case declined to consider technical arguments. While the GPL is widely recognized as a binding agreement between developers, it has not yet been tested in a court of law. The chances of MySQL AB and NuSphere's contract wrangling being expanded in order to prove the legitimacy of the GPL look slim as Boston, Massachusetts US District Court Judge Patti Saris refused to allow arguments to expand beyond the trademark dispute. The original court case came about after a disagreement between Bedford, Massachusetts-based NuSphere (owned by Progress Software Corp) and Uppsala, Sweden-based MySQL AB, original creators of the MySQL open source database. NuSphere licensed the rights to distribute and support the MySQL database and agreed to make payments of "up to $2.5m" under a June 2000 agreement that also marked the first release of MySQL under the GPL. However, NuSphere angered MySQL AB when it set up the mysql.org community web site. MySQL AB sued NuSphere for trademark infringement and further claimed it had only received just over $312,000 from NuSphere. It also asserted that NuSphere had infringed the GPL by not releasing its Gemini transactional storage engine addition to MySQL under the GPL. NuSphere denies this allegation, arguing that it has released the Gemini technology under the GPL, even though it was not required to do so as Gemini is not actually a derivative of the MySQL program itself. NuSphere has also made available on its web site a copy of the original agreement between the two companies, which indicates that payments in addition to the $312,000 were subject to further agreements being made between the two. According to reports, Judge Saris announced before arguments had even begun that she had more or less made up her mind and was inclined to grant MySQL AB's motion for a preliminary injunction with respect to the trademark issue, but was not inclined to grant the preliminary injunction against NuSphere from using the MySQL code. Although no motion was formally granted, Judge Saris urged both parties to come to an out-of-court settlement. It appears that the judge agreed with MySQL AB's assertion that its original agreement had ended, and as such, NuSphere's continued use of the MySQL trademark was an infringement. The Free Software Foundation (FSF) entered the fray on Tuesday when it released a statement that Progress/NuSphere had lost the right to distribute MySQL due to an infringement of the GPL and that Gemini was linked statically with the MySQL database to form a single binary program. It also stated that it was going to assist MySQL AB in its enforcement action. While the FSF, the originator of the GPL, has previously managed to address GPL disputes outside the courtroom, it is in many ways in its best interests to prove the legitimacy of the license. There are several doubts about the legal validity of the GPL - in particular its "copyleft" approach, which obligates anyone who modifies GPL-based code (and distributes this -ed) to make the modifications available under the GPL. This obligation is extended not just to the original licensee, but also to any third party who uses or modifies the code. One of the issues is whether the GPL is a form of copyright (which assigns to the creator intellectual property rights) or, as software licenses are generally considered to be, a contract (which may give permissions to third parties, but not obligations). The FSF states that 'copylefting' is the method of copyrighting a program and then adding distribution terms, which give everyone the right to use, modify and distribute the code so long as the distribution terms are unchanged. This means that a developer who modifies GPLed code owns the rights to their modifications, but is forced to make them available under the GPL. Whether or not the GPL can be legally used to force a developer to make their intellectual property available under the GPL is open to question. It seems the FSF will have to take a judicial enforcement route at some stage if it is to prove the legitimacy of the GPL, but it doesn't look like it will be getting a chance with NuSphere versus MySQL AB. --------------------------------------------------------------------------------------------------------------------- _ Philippine Linux Users Group. Web site and archives at http://plug.linux.org.ph To leave: send "unsubscribe" in the body to [EMAIL PROTECTED] To subscribe to the Linux Newbies' List: send "subscribe" in the body to [EMAIL PROTECTED]
