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Judicial Order in MySQL AB vs. Nusphere Suit 172

Posted by michael from the lay-down-the-law dept.
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."
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Judicial Order in MySQL AB vs. Nusphere Suit More

Judicial Order in MySQL AB vs. Nusphere Suit

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  • It won't make it to trial. Someone will get paid off.

    Is my cynicism showing?
  • I guess this is the most relevant quote Judge Saris made clear that she sees the GNU GPL to be an enforceable and binding license.

  • "seems to have the better argument" (Score:4, Interesting)

    by Pinball Wizard ( 161942 ) on Friday March 01, 2002 @09:58PM (#3095819) Homepage Journal
    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.

  • Linking (Score:4, Insightful)

    by Anonymous Coward on Friday March 01, 2002 @09:58PM (#3095822)
    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.
    • "rewriting the FSF's GPL license is impossible, and it must remain confusing in order to work."

      'Removing internet explorer from windows is impossible and without it windows won't work'

      ..

      interesting

    • Re:Linking (Score:5, Informative)

      by lkaos ( 187507 ) <anthony@codemonk ... s minus math_god> on Friday March 01, 2002 @10:41PM (#3095994) Homepage Journal
      The wording is definitely ambiguous. In fact, the GPL FAQ even has this question [fsf.org] 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.
    • 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

      Not really. But it might not be all that bad.

      What might happen is that the linking restrictions could be stricken on the doctrine that the linked object isn't a derivative work, but the rest of the license left standing - including the grant of rights on already-released code.

      The result would effectively make the existing GPL act about like the LGPL. You could use your rights under the GPL to modify/fix/extend the GPLed module, then use the interpretation that the linked object is not a derivative work to distribute proprietary works statically linked with it. You'd have to distribute source to the modified version of the library routine, which would still be under the (weakened) GPL. But you wouldn't infect the code that calls it with the GPL and could keep that source closed.

      Later versions of modules written by single authors could be released under a "hardened" GPL. So could later versions of modules where all the authors could agree, or where the rights had all been assigned to an organization like the FSF. (And the existing version could also be re-relased that way, too, to give future maintainers the ability to release their versions under hardened terms.) But that wouldn't put the already-released versions back in the bottle. And the mix of licenses might cause other problems, such as code branching with some authors making divergent changes that they DON'T want under the hardened license terms.

      At least that's how it looks to me. But IANAL. (Or I might be confused about the terms of the GPL and LGPL.)

      IMHO this might actually improve things. It would make more of the codebase usable by proprietary applications, and would result in applications that are easier to write equivalents for - because they're essentially glue between open-source library modules.

      But that's just my opinion. Some people who released the base modules under GPL no doubt disagree with me. It's THEIR code and thus THEIR right to licence it as they please.

    • The definitions provided by the FSF have to be vague. The FSF has no other choice in the matter.

      See, "Derivative Work" is a term defined by copyright law. Its up to copyright law and/or the US court system to decide if and when a work is a derivative work. Static linking seems like a reasonable "derivative work" definition, if what you're distributing is the statically linked binary. (As you then need the permission of the original copyright owner to distribute their works, which are part of your binary) Dynamic linking's a lot trickier, as anyone could (in theory) drop in a replacement library that's not GPL'd. And invocation of functionality through IPC/RMI/whatever-TLA-it-is-this-week is even more difficult - though I believe RMS has stated that the GPL does not cover this. (Think about what the side effects would be on the Internet!)

      However, the US court system may not uphold this. Or it may decide that both static and dynamic linking are derivative. Or Microsoft might pay them off, and they might decide that everything on the same hard disk as a GPL'd program is GPL'd, and therefor the GPL must be banned from use in America. Who knows?

  • Set that precident (Score:4, Interesting)

    by QuantumG ( 50515 ) <qg@biodome.org> on Friday March 01, 2002 @09:59PM (#3095823) Homepage Journal
    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.
    • a simple solution to your hypothesized situation. Find a midi program released under the BSD license.
      • Oh thank you for your fantastic insight.
      • and there is another solution...find a piece of closed source code and pay to license it...oh you want your lunch for free?

        Once you go looking for proprietary code to pay for and starting reading the license agreements...the simplicy and openness of the GPL gains some context. If you need to write a closed source program and you dont want to write all your own code...BUY a license for another piece of closed source work...pay someone to write it for you...find a BSD licensed code...find public domain code...but don't use the GPL code. You can cry all you want but there is nothing wrong with demanding that GPL works can not be incorporated into nonGPL works as part of the license. If it comes down to an unspecificness of the wording...the GPL will be updated so the legalese fits the intent...but the intent behind what is written in the GPL is perfectly valid as a license agreement as a limit to how one can redistribute it. If you don't like it...don't use GPL code.

        You have choices...unlike the music business..the code authoring business there is a viable competitive market. You actually have choices when figuring out how to get code written to do a specific task (unless its a patented process).

        -jef

      • Or, better yet, put some wrapper code around the library in question to turn it into a server process. Then have your program launch it and make socket calls to it. The only part you'd have to gpl then would be your mods to turn it into a server process. Would this work?

    • Re:Set that precident (Score:5, Interesting)

      by lkaos ( 187507 ) <anthony@codemonk ... s minus math_god> on Friday March 01, 2002 @10:11PM (#3095880) Homepage Journal
      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.
    • But is this using copyright to restrict rights beyond the intention of copyright law?



      Well the copyright law basicly gives the copyright holder the right to decide what the license is.



      At another level copyright is intended to encourage people to write and publish, certainly GPL encourages this in a way that tends to result in a sort of chain reaction publishing or more source - so I think it results in exactly what the original authors intended in a way that a simple giveaway of a library to the public domain does not

      • Well the copyright law basicly gives the copyright holder the right to decide what the license is.
        True, but there are restrictions. For example, I cant put in my license agreement that you may not use my competitors products. This is called "Copyright Misuse" and the representative case is Practice Management Information Corporation v. The American Medical Association. Technically copyright misuse is the use of a copyright to secure an exclusive right or limited monopoly not granted by copyright law and against public policy. Another example is when a software license says you may only use the software on the copyright holder's hardware. Why? Well, you're using the monopoly granted to you by copyright law to enforce a monopoly in a different market (hardware). So the GPL could fall into this category too. In my example the monopoly granted to the author of the midi library by copyright law does not extend to the market of web browsers.
    • I'm sure it will be pointed out by others, but really - no one is forcing you to use GPL code in your program. Therefore, if you can't find code with a less restrictive license, or you don't want to cough up the money to get some commercially licensed code, and you don't want to submit to the terms of the GPL, then guess what? You have to write your own code. That GPL code is *not* free. It's there for use in other GPL'ed works and if you don't want to follow the terms of that license, than you just don't use GPL code anywhere. :)

    • Re:Set that precident (Score:5, Insightful)

      by Frater 219 ( 1455 ) on Friday March 01, 2002 @10:22PM (#3095927) Journal
      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.

      • I didn't say I somehow had a right to use your code. What I said is that the license you choose to distribute your code under may well have elements in it that are illegal under copyright misuse laws. Neither did I say anything about proprietary closed works. If we're talking about the BSD license and all my code is open then I still cant incorporate your library into my web browser. It's all really a moot point however because unless we have a signed license agreement I'm not going to get any love from the courts.
      • Bull. You are forgetting about fair-use.

        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.

        The interesting thing about the GPL is that most projects don't FORCE you to agree to it. If it's found that my above senerio is legal, than it would seem that extending freely available code (where you haven't agreed to any particular license) would fall under fair use as well.

        Another pitfall of the GPL, is that you don't have the right to change the pitfalls yourself. If you FORCE me to agree to your license (click through) that only means I'm agreeing to something that explicitly tells me I don't HAVE TO agree to it, and you can't change that legally. 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.)

        The GPL has many problems, and no redeeming factors I can see (It's laughable that people think Microsoft can't embrase and extend GPLed software, even while conforming to the GPL). I'd say just go with BSD and your code will become so standardized that Microsoft won't dare change it (e.g. TCP/IP, IPSec, NFS, HTTP, FTP, et al). Not to mention that projects under different open-source license can finally take advantage of if.

        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!

        • Re:Set that precident (Score:5, Insightful)

          by Frater 219 ( 1455 ) on Saturday March 02, 2002 @05:17AM (#3097074) Journal
          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 [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.

          • [when I grant permission under the GPL] 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. I disagree. When I grant you license under the GPL, what I'm asking in return is that that whatever you distribute my code (or it's derivative) with, is also GPLed. This is not necessarily a trivial 'request'.

            As was pointed out: If I write a program that takes 1 million lines of code and want to include your 400 line GPL enhancement, I need to GPL my 1million lines of code to do it -- and that's thw whole intent of the GPL.

            Now granted -- if I've already written a million lines of code, it should be (relatively) trivial to write my own version of your GPL code -- but the intent of the GPL is to make it be the other way 'round. -- and that's actually closer to what happened in the MySQL/Nusphere case... They took a couple million lines of code, added a few thousand of their own, and tried to sell it as a proprietary product -- then they got snarky when people called them on it.
            WHACK!! Slap 'em on the back of the wrist with a sledge-hammer.

    • Copyright grants a limited monopoly to an entity for a limited time. But that is still subject to predatory trade laws. So what goes for the RIAA does not go for the FSF.

      The FSF is not a commercial entity, and the GPL works in a complex way which actually prevents a derivative work from extending this control-- i.e. if you make a derivative work off my GPL'd software and I want to use your code in my proprietary software, the fact that your code is based on mine doesn't matter, I still need your permission. (This is why Linus can't turn arround and start charging license fees for Linux.)

      So anti-trust laws do not apply. Sorry.

      But, IANAL.
    • 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.

    • Um, you are metaphysically slapping the faces of programmers who use the GPL. The purpose of the GPL is to make sure that your hard work is used the way you intended. Let's look at this from a business perspective. If I wrote a library for midi playback and sold it for $1 per binary distributed, then my rights to restrict you from using it without paying are clear (I hope). So why shouldn't I be able to do the same thing even if my fee for the library is the sharing of source and not money?

    • 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.

    • Re:Set that precident (Score:5, Insightful)

      by augustz ( 18082 ) on Saturday March 02, 2002 @01:24AM (#3096526)
      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.
    • 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?

      If anything the GPL is one of the few examples of software applying copyright in the way it was intended. Especially in the case of the USA, where the intent of copyright is clearly described in the US constitution.
    • It's pretty simple: the object code version of the GPLed code is a derivative of the original source. If you distribute that object code attached to a piece of non-GPLed code, you are violating the GPL.

      Note when I distribute my code with a piece of GPLed code, my code (by itself) is not the derivative work. It's the GPL object that's the derivative. I can only distribute the GPLed derivative part of the program if my derivative part of the code is also GPLed.

      +--grumble--lameness--filter---+
      |..larger object module........|
      | +-g.um-ble-+ +-gr--um--ble-+ |
      | | GPL CODE | | Non-GPL cod | |
      | +-g.um-ble-+ +-gr--um--ble-+ |
      +--grumble--lameness--filter---+
       If you can distribute the larger object module with out distributing the GPL code, then you don't have to worry about violating the GPL. :-)

      • I'm getting bored of this thread but anyways. The copyright misuse act says a lot of things but one of the things it says is that you cant use your copyright on a product in one market to leverage control over another market. That's what my example of the web browser and the midi library was about. That didn't fly too well with too many people so I'll give another example.

        Another thing the copyright misuse act says is that you cant restrict a licensee from using a competitor's product or developing a competing product. So to use your ascii art (very nice btw) as part of my example, consider that you are creating a paint program. You decide that a critical part of your paint program is going to be colour scaling. You consider colour scaling to be a rather complex task so you decide to use the recognised best colour scaler on the planet, GnuShade (not a real project, but let's just say it's under the GPL ok). Being a good gnu citizen you decide to make your entire paint program GPL'd too. That way everyone can develop it and really you dont think hiding source code is important to making money. You are pro-[open source | free software] and know that your customers are going to pay for your brand recognision. For a number of years you are very successful and sell a lot of your product which really does different stuff to the Gimp and fills a different market in the source-available graphics program world. But things have changed in those few years. GnuShade's development has been lagging and new techniques of colour scaling have come along. Unfortunately they have been developed by a company that does not share your vision of source-available software. Your customers are demanding that you add this proprietory module to your program, but they dont want to give up GnuShade either. What do you do? You could include this proprietory module with your product but then your product couldn't be distributed under the GPL (cause everything must be source-available to comply with it) and if you distribute it under something other than the GPL then you cant include GnuShade with it (for the same reason). There is no way you can distribute GnuShade and this new proprietory colour scaler in the same product which you distribute "as a whole". You might be able to get away with developing some plugin architecture and offering this proprietory module as a free download from your web site, but your customers dont want a free download, they want GnuShade + this proprietory colour scaler to work out of the box as it were. Effectively, the license of GnuShade (the GPL) prevents you from using a competing product because the licenses are incompatable. It could be argued that this is the same as explicitly stating that the license prevents you from using a competitors product. If the only two products in this market are GnuShade and this new proprietory upstart this case is a lot stronger. It could be claimed that effectively the owners of GnuShade are engaging in copyright misuse.

        Obviously I think this is a load of horseshit and that's why I didn't mention it in my first post.

  • More About the Suit (Score:3, Informative)

    by Eppie ( 553278 ) on Friday March 01, 2002 @10:09PM (#3095868)

    The press release does not have much info on what the suit is actually about. Here are some links to explain the dispute:

    I couldn't find any propaganda on the Nusphere site. I guess they're downplaying the story.

  • ...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

  • what would the expert witness say? (Score:3, Insightful)

    by Dr. Awktagon ( 233360 ) on Friday March 01, 2002 @10:32PM (#3095963) Homepage

    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).

    • Derivative works are defined by copyright case law. As is just about every technical legal term. There is no doubt over what is and isnt a derivative work. There are issues over what constitues a "seperated" work but this has nothing to do with copyright law, it has to do with the GPL specifically stating that significantly seperated works do not fall under the GPL when distributed seperately.

      These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

      How NuSphere intends to argue that their software is "seperate" is beyond me when it seems largely irrelevant, they distribute them as part of a whole which is based on MySQL, the program.
    • It depends on the witness. There's a ton of different ideas floating around about what constitutes linking (IPC? network calls? static libraries? dynamic libraries? what about programs that rely on a GPLed kernel's system calls?) with no clearly right answer that everyone can agree on.

      It will be interested to see how it all unfolds.

    • 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.

  • I'm glad it's Judge Saris hearing the case (Score:4, Insightful)

    by Innominate Recreant ( 557409 ) on Friday March 01, 2002 @10:57PM (#3096040)
    Back in 1996, Judge Saris made a common sense ruling [kuesterlaw.com]in 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? :-)
    • I'm going to show my cynical side here, but how do you know the ruling was based on common sense? Maybe someone at State Street Bank or another mutual fund company that would be negatively impacted by an SFG win had some influence over her?

      I'm not saying that is the case -- perhaps she is a righteous and noble judge, just looking out for the rights of the common man; but this ruling by itself proves nothing.

    • Yes, Judge Saris' summary judgement on State Street Bank vs. Signature Financial Group applied common sense. Unfortunately, that didn't help, because her judgement was overturned on appeal [emory.edu], and the final disposition of the case is what established the patentability of software business methods [ipwatchdog.com].

      To make any difference in our legal system, common sense must be allied with and supported by solid legal argument. Otherwise, we can easily end up with legal conclusions that are absolutely nonsensical. Yeah, that's often frustrating...

  • Unfortunately MySQL crying about GPL violation is weakened by their apparent failure to understand the GPL with respect to linking. Their license terms say that a client program linked with their LGPL client library which talks to a separate (GPL) MySQL server is effectively linking with GPL code, and therefore your client should also be under the GPL. (see bullet point 2 [mysql.com].) The FSF's interpretation of the GPL has clearly shown that they believe IPC between separate address spaces is not linking under the GPL; this is the only reasonable interpretation, since there's no single file which contains both your client code and GPL code (and "mere aggregation" doesn't count). Of course, its up to MySQL AB to adopt whatever interpretation of the GPL they like, and if they choose to use their interpretation to sue someone, they are free to do so. But they won't get much support, and probably won't win; in doing so, they may weaken the GPL. (And no, this has nothing to do with NuSphere; their case is much more obviously GPL violation that everyone can agree with.)
    • IIRC, the FSF permitted IPC only so that a non-free shell could be loaded to run within emacs when there were no free shells available.

      Communication between GPL and non-GPL code via pipes and sockets is generally O.K. so long as it isn't a sham for what would otherwise be a function call to an integral part of the larger work. In the case of emacs and a shell, it isn't emacs that needs the shell, but rather the user of emacs.

  • As publishers of the GNU GPL, the FSF has a basic ethical imperative to educate the public and the judiciary about the license and its terms.

    ... FSF has to educate judiciary ...

    Do I REALLY have to say anything else?

  • What I want, is a decision on what a program is... (Score:5, Insightful)

    by trims ( 10010 ) on Saturday March 02, 2002 @12:06AM (#3096265) Homepage

    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

    • Easy to arrange. Release some code under the GPL. Get a friend to build a possibly-derivative work, using the sort of linking you want to test. Have friend release this new work under a proprietary license. Sue friend. Once a judgement has been handed down, settle out of court for some trivial sum, then repeat to test the next type of linking.

      Of course, you (and friend) will probably be out-of-pocket for all court costs, and may be facing accusations of "wasting the court's time" and "filing frivolous lawsuits", but heck, you said you wanted to know, surely the information is worth spending a little money on?

      Me, frankly, I don't really care, I'm happy to err on the side of caution, and save my money. :-)

      cheers
    • It is difficult, and, in some ways the GPL isn't strong enough.

      Consider that simply aggregating the right components in the right way, so they "self-assemble" at run-time to form a greater whole might very well involve "abuse" of GPL code. Just look at Linux-based distributions with a great deal of non-free code and how much they benefit from a free kernel, network code, graphical system, etc. 80% free and 20% non-free. Is that fair? I'm sure that some GPL proponents would say no, even thought the GPL was not violated.

      One way to deal with this is to add a clause that prohibits redistribution "if intended for the purpose of causing a computing apparatus to provide functionality essential to a larger work, and that larger work is not distributed under the same license".

      Now, "intended" and "essential" might be subject to debate, and possibly interpretation by a court, but simple aggregation without creating a specific greater functional work, would still be permitted.

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