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MySQL AB Counter Sues NuSphere for GPL Violation 128

Posted by Hemos from the blam-blam-shooting-match dept.
Rolan writes "Looks like MySQL AB and NuSphere are at it again. A LinuxGram story has all the details... MySQL canceled the distribution contract they had with NuSphere, prompting NuSphere to sue them. MySQL has counter sued for trademark infringement and GPL Violation. About 2/3 through the article is where the GPL Violation is covered, but an interesting read. One of NuSphere's Lawyers (according to Linux Gram, NuSphere denies it, but I think it's true, read for yourself) said that: "they will deny the charge and, if that doesn't work, deny that the GPL is enforceable."..."
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MySQL AB Counter Sues NuSphere for GPL Violation More

MySQL AB Counter Sues NuSphere for GPL Violation

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  • Old news? (Score:1)

    by Anonymous Coward
    This article was written two weeks ago: "NuSphere and MySQL representatives are supposed to try again this Friday morning, July 20 in a conference call." "The source code to the Gemini Storage Engine, which is also included in Advantage and Pro Advantage, wasn't GPL'd until the day before yesterday."
  • Johnston says NuSphere was "obligated to pay MySQL $300,000" and that although their agreement said "up to $2.5 million," the difference was discretionary. MySQL thinks it wasn't and says it only got $282,501 anyway, $17,499 short of the $300k Johnston swears NuSphere paid the Swedes. (For the record the figure actually appears to be $312,501, according to the NuSphere suit.) so mysql ab saw "$2.5M" but 'only' got $312,501, and now they're saying that NuSphere violated the GPL? isnt this whole "i didnt get paid" scenario kind of ironic, seeing that mysql is alledging that NuSphere violated a license that promotes free software?

  • Re:Denial (Score:1)

    by Anonymous Coward
    In fact most proprietary software contracts are based on contract law, not copyright law. Contract law both allows one to create terms that might seem unreasonable, and actually transfers ownership. It is subject to local interpretation and results may very widely.

    Copyright licensing implies no ownership actually changes hands, for otherwise enforcement of such a concept as copyleft would be impossible in derivitive sales. It is also much more uniform than contract law, and may actually be applicable and enforcable internationally, at least in Bern signature countries.

  • In other Gnews.. (Score:4)

    by Anonymous Coward on Thursday August 02, 2001 @04:10AM (#2177107)
    RMS has sued both parties for not calling the GNU derived application as GNU/MySQL.

    "Free Software " declared RMS, "always starts with GNU".

  • RTFA: "The MySQL suit, filed last Wednesday in federal court in Massachusetts[...]"

    Yes, it's a long article, with some big words, and no pretty pictures, but the above quote is the third paragraph down.

    Jebus.

    ...j
  • Posted by polar_bear:

    Did this go to court, or settle out of court? If it was fought in court, please include the name of the case so that people can look up the judgement.

    If this happened, then it has become legal precedent and people should know about it.

    I have no doubt that the GPL is enforceable - why shouldn't it be? Simply because it requires other code that uses GPL'ed code to be GPL'ed instead of asking for money? I've never understood why so many people try to call into question the validity of the license. (Other than FUD)

  • I resemble that remark :P
  • Boy, the great thing about free software is that you get away from all those legal battles and corporate wrangling that plagues the commercial software world...

    Where there is money at stake, there will be legal battles, regardless of wether the money comes from commercial software or free software (or supporting free software or whatever).

    I wonder how many of the benefits of free software come more from the free beer nature of it than the free speech nature of it. Both sides seem to discount the 'free beer' aspect as unimportant. The commercial companies point out that it's TCO that matters, not ticket price. The free software people talk about how it's openness and freedom that matters, not the ticket price.

    But in reality, it's the free beerness that is much of the benefit, of the root cause of much of the benefit.

    More of my spoutings on this available here:
    http://www.snowdrift.org/computers/lamp.html
  • Either you can build a business around free software or you can't. If you can, then money needs to change hands, and these sorts of arguments will happen just like they do for every other business.

    If, on the other hand, you think money should not be invovled, then don't be surprised when large companies (or any companies, come to that) lose interest in free software.

    There's been a lot of talk about how to found a business on free software, but there's not much evidence for it yet.

  • Re:Interesting (Score:3)

    by sheldon ( 2322 ) on Thursday August 02, 2001 @06:29AM (#2177113)
    I don't believe there is any doubt that you as the author of software hold the copyright.

    That part of the GPL will always be enforceable, because it's not really the GPL but rather just straight copyright.

    The problem lies in that NuSphere wrote custom software of their own, and the GPL forces them to relinquish their copyright control over there own creation because they happened to derive their final product from the mySQL stuff.

    It's this conflict that is likely the basis of any GPL enforceability question.
  • It's quite pathetic to see it as free speech and in the real world, not many does.

    Well yeah, if you don't cout the courts as part of the "real world," I guess. Cuz the "free speech" issue is a lot of what the whole MySQL AB/NuSphere lawsuit is about.
    --

  • I believe that Mozilla includes a built-in demoroniser, by assuming that stuff claiming to be Latin-1 but having characters in the C1 range used by CP 1252, is really CP 1252.
  • Actually, GPL IS based on contract law. However, it's also based on the fact that, under copyright law, you are denied certain rights on the code you get (redistribution). Then, the GPL proposes a contract: in return for you following certain rules, you get the right to redistribute the code. GPL meets the tests of contract law: offer & acceptance, consideration, legal purpose, competent parties (OK, that assumes you're competent).

    Most licenses, however, have no offer / acceptance, or consideration. This is because they REMOVE rights, instead of granting additional ones. So, what is the company giving up (consideration)? You already HAD the right to run the software (by buying it). And, how do you show acceptance (with GPL, as it states, you don't have to accept, but nothing else grants you the rights)?

    BTW: IANAL, but did study one term of contract law in college.
  • Assuming he wasn't misquoted, according to the article new MySQL CEO Mickos had this to say:

    MySQL says NuSphere releasing Storage Engine source just the other day doesnt change history, and its new CEO doubts the source code NuSphere has released is the stuff Progress really used in its proprietary version of Storage Engine. Mickos claims he heard someone tried to compile the code and failed.

    Oh, he "heard" that "someone" couldn't get it to compile? Well I guess the Linux kernel is in the same boat, because I hear of people who can't get it to compile every day.

    In Mickos' situation, I would have downloaded and tried to compile the code myself, but nobody asked me...

    On the other hand, the article is so poorly written (and, by extension, edited), that it could be a misquote, a misunderstanding, or just made up out of whole cloth.

  • Hmmm, with NS 4.75 on Solaris it's still broken. Even "view source" shows '?' rather than any kind of quote.

    If Mozilla includes a built-in demoroniser, then I'll be upgrading right away. I'd prefer to rain fiery death on Redmond in thanks for smart quotes, but just being able to ignore them would be nice.

  • Somebody involved in this story is not a Linux company - either MySQL, NuSphere, or maybe LinuxGram. Why do I say this? The article is full of those ?smart quotes? that need to be demoronised [fourmilab.ch]. Since the dumb quotes are throughout the article, I'm thinking that LinuxGram is running things on Windows somewhere. That's pretty sad, really.

  • Only after we sued NuSphere for GPL violation did they post the source for Gemini on a website. Please also note that the GPL licence requires you to ACCOMPANY the software with the source code or a written offer to supply the source code. To date NuSphere has not to our knowledge even admitted the GPL violation.

    This sounds entirely reasonable on MySQL AB's part. So, were NuSphere to begin accompanying their GPLed code release with such a written offer and do whatever other steps are necessary to bring their software into line with the requirements of the GPL, would the GPL violation portion of the MySQL AB case be dropped?
  • Well it could be unenforceable because it is too vague. What's a "derivative" work?
  • A week or two ago I was wondering who were the good guys. Now, thanks to the lawyers brilliant explanation of their legal strategy, I know.

    Any company that sponges off the Free Software community, and then doesn't support the GPL deserves no support at all from the community.

    Caution: Now approaching the (technological) singularity.

  • Re:If Redmond thinks (Score:5)

    by DGolden ( 17848 ) on Thursday August 02, 2001 @04:39AM (#2177123) Homepage Journal

    As usual, it is worth pointing out that if the GPL were ever found unenforceable, then you have NO right under copyright law and international treaty to use the code - it doesn't suddenly become public domain.
    This is one of the reasons the GPL tends not to get challenged - it's a lose-lose situation for a GPL infringer who challenges it in court:

    Scenario a: GPL challenge fails. Infringer has to GPL all derived work of original GPL code that he wants to distribute. Presumably he didn't want to do this, otherwise he wouldn't have taken it to court...

    Scenario b: GPL challenge succeeds. Infringer has to stop distributing all derived work of original GPL code, as he now has no rights granted to him by the original copyright holder to use the code.

  • Well, if an external entity can compell them through the force of law to release their program under the GPL or prohibit them from distributing it, then obviously the author is *not* in control of the software.
  • The GPL exists BECAUSE every other copyright and IP related issue is unreasonable.

    Wow. I think you proved the posters point. Every other copyright and IP related issue includes: non-copylefted political opinions and literary works (which RMS deems more than acceptable), other non-GPL licensing like BSD, MPL and even public domain, trademarks, artistic rights, etc., etc., etc.

    The entire concept of copyleft, that an author can force distribution of derivative source code, can ONLY be based on traditional copyright. If an author should not be able to own his works (as RMS asserts) then the author owns derivative works even less! The only things that prevents GPLd works from being closed up, encrypted and locked away behind onerous contracts and registration schemes is copyright law.
  • As usual, it is worth pointing out that if the GPL were ever found unenforceable, then you have NO right under copyright law and international treaty to use the code.

    Not necessarily. The GPL, and not copyright law, is what defines dynamic linkage as creating a derivative work. (please quote the relevent clauses of copyright law if you disagree). If the GPL were unenforcable, then there is nothing stopping one from dynamically linking to a GPL shared library.
  • The GPL is the entity controlling derivations, since it is the one that hasn't removed the restrictions from them. To offer an analogy, if I prevent you from entering my home, I can't say "it's not me preventing you, it's trespass law".
  • The typical EULA and software license is not based on copyright law, but on contract law. That's why they're called agreements. A world without copyrights would still have contracts.

    And a world without copyrights would still be a world with bizarre encryption and registration schemes. If you can break the copyright-less Windows protection, you're home free... Until the next version.
  • ?Smart Quotes? arn't necessarily exclusive to Micro$oft. I was under this mistaken impression until a few days ago when I cut/paste from Abiword to a web form. Abiword (atleast with the Hevelitca font) has the same problem.
  • So the GPL is going to be tested in court, and that's in a case involving two 'Open Source' kind of companies (if you find a better term don't hesitate to use it instead). That's great news isn't it? You would expect to se MS or SUN there, no we are just fighting with ourself.

    Are you not all tired of behaving like kids, running after money like sweets and look like fool? Linux went up sooo fast that it's going back down at least as fast. Well done guys.

    I'm just going to go back coding, and I'll stop reading the news or even investing my time for a cause which has been lost a loooong time ago.

    Thanks for listening.
  • Yes, yes and yes again. I don't like agreeing too much with people (I don't learn nothing new like would say a friend from NY), but I have to.

    But I didn't mean that Linux should fight MS. I meant that I was expecting MS to check the validity of the GPL in court. We should not fight with anybody at all. Just do our best and forget about the world. That's how we got there and if we stop that's the reason why we will lose our community (that's what I meant by going down, not loosing the media interest...).

    At the same time, maybe we should convert the script kiddies to real programmers instead of being bitter... That might be a good idea. Still better than what we end up reading here. The problem is NOT slashdot, it's the submitions, it's us...

    I'll stop now, otherwise I'll get flamed ;)
  • Screw 'em both. I'm switching to PostgreSQL.

    Any reason (technical OR philosophical) not to do this?

  • Scenario a: GPL challenge fails. Infringer has to GPL all derived work of original GPL code that he wants to distribute. Presumably he didn't want to do this, otherwise he wouldn't have taken it to court...

    No, the infringer has to stop violating the GPL. This could be done be ceasing all distribution of the code in question. The infringer may have to pay penalties for past violations (this may happen even if the infringer now chooses to GPL its code). The infringer is never forced to give up its code under the GPL.

    I am not a lawyer. This is not legal advice.

    Sumner

  • From the Three stooges, possibly elsewhere.

  • Re:What did they buy? (Score:3)

    by topham ( 32406 ) on Thursday August 02, 2001 @06:23AM (#2177135) Homepage
    Which is precisly why I find MySQLs version really shaky.

    NuSphere may not have met the agreement as far as MySQL is concerned, but it seems to me MySQL still made aproximatly 300K on the deal.

    And for what?

    Also, NuSphere is required to give GPL code away for free to 'anybody'. They are required to give it away to people who buy the product. (What those purchasers do with it is up to them, not NuSphere).

    So, unless NuSphere was refusing to release the source code to anyone who purchased the product they were not violating the GLP.

  • The problem lies in that NuSphere wrote custom software of their own, and the GPL forces them to relinquish their copyright control over there own creation because they happened to derive their final product from the mySQL stuff.

    No, NuSphere does not relinquish control of their copyright, but they must release they're program under the same terms as the rest of the GPL program, or are prohibited from distrubiting it.

  • ...to use Postgresql. As if subselects weren't
    enough. :)

  • I never said 100% of all people agreed what it meant. I said it had a definition in the law.


  • "Derivative work" is defined by copyright law. It's not vague at all.

  • If you deny that the GPL is enforcable, then you deny that every other software license based on copyright law is enforcable. Somehow I doubt that is going to happen.

    Here's where it could go wrong. I am not a lawyer and I have only a decent layperson's understanding of intellectual property law. However.

    I think a court could say that the obvious purpose of software licensing is to ensure the future revenue stream of the licensor. Given the observed tendency of US courts lately to consider profit something akin to a civil right, I wonder whether the court might rule that licensing terms that don't directly, monetarily benefit the copyright holder are not... um... "protected" isn't quite the word I'm after, but I think you see the point.

    IOW, I'm a little concerned that a judge might rule the must-share provisions are invalid because they go against the purpose of copyright law and software licensing. (Which was RMS's point but you and I agree that this is a good thing.)

    In fact, I wouldn't be too surprised if a judge went a little further in ruling that "must-share" is an unreasonable restriction on the ability of the licensee to generate profits.

    It's a little more likely, IMO, that a court would rule that it's not possible to have standing in an action to enforce the "must-share" clauses, because "must-share" only benefits parties who are not part of the license agreement. GPL is a little like saying "take my widget for free, but you have to do help an old lady across the street tomorrow." I may not be able to prove that I was financially damaged by the widget-user's failure to help the old lady. And the old lady wouldn't be able to recover damages either, because she wasn't a party to our agreement.

    ./ers have observed over the past couple of years just how much of US legislation and jurisprudence has gone over to a "must-profit" principle. Unfortunately, I don't think it's a huge stretch to imagine that "must-share" could lose in court against "must-profit".

  • Good comment - but please explain, how is this on-topic?

  • Who the H* wrote this? (Score:3)

    by bungalow ( 61001 ) on Thursday August 02, 2001 @07:16AM (#2177142)
    This article bounces around like a 3 - year old exposed to Penguin Mints. There is no logical progression of events, no real explanation of what happened, and no coherence. This is a bunch of He Said - someone else said. I understand why no reporter put his name on this article - I never would want my name on something so poorly written.

    Take a look if you like: there are 44 paragraphs, with an average of 3 sentences each.
    Here is my favorite:

    Anyway and why this is more than passingly interesting, buried half way through its suit, MySQL claims NuSphere materially breached the GPL by distributing programs derived from MySQL without providing the source code as required by the GPL license.

    Forget the reporter: What kind of editor let this pass through? This passes for reporting? The freaking WORD paperclip speaks more intellegently.
  • Ya know, it's crap like this that makes MS and their "viral code" provisions look (in the eyes of the uninformed) justified. OSS has bigger fish to fry than themselves. If they want credibility in the business world, this squabbling over GPL violations needs to end pronto.
  • It [MySQL's suit] says NuSphere's violation of the GPL automatically terminates its rights under the GPL.

    NuSphere people call the charge a 'sideshow' and a 'smokescreen concealing MySQL's termination tactics.'

    I have to agree with NuSphere on this point. The contract and possibly the trademark are the two issues of interest. I feel as if MySQL's developers are trying to pull more people into the fray to help them win publically.

    As for who is at fault, I have no clue. If NuSphere can prove that payment was received in full by MySQL, I can see a few developers in hot water for breach of contract.
  • It all depends on how they claim it is unenforceable and if other licenses have the same qualities determined to be unenforceable.
  • * breach of the interim agreement we had
    * trademark infringement

    These are the two issues I mention.

    * breach of the GPL licence

    I don't see this as an issue. Enlighten me.
  • You don't see license infringement an issue? As in, "it's perfectly ok to disregard licensing"? Or as in "you haven't proved it happened"?

    The latter. I am under the impression that NuSphere has closed-source software which communicates via IPC to GPL software. If this is the case, I don't see where the violation is happening. NuSphere has also stated they will provide or they are providing the source for all of the GPL'd code.
  • Heh. One good thing that could come out of this is of course if the GNU GPL finally becomes tested in court. Being Swedish, I must say that it will be very interesting to see how this unfolds. Unfortunately, I assume that such a test wouldn't mean much to e.g. the large number of North American developers, to whom a Swedish court ruling probably isn't worth all that much.
  • Ouch. My mistake, sorry. I guess I just assumed that since MySQL AB is a Swedish company, that they were going through the Swedish legal system. It did strike me after posting that I didn't consider the nationality of NuSphere... On the other hand, then, this might mean that the GNU GPL gets testing in a US court of law, which is actually more interesting in the grand scheme of things. Just less applicable for myself, personally. Thanks for the heads-up, anyway.
  • Since so much open source is dependent upon the GPL, and nobody knows for sure how enforceable it is, I wouldn't mind finding out. Better to know now that we're building castles in the sand than years later.

    And if it IS going to court, I'd prefer that the lawyers prosecuting it be a bunch of arrogant fools too dumb to keep their mouths shut about their legal strategy before going to court, rather than the top-shelf lawyers likely to represent a huge multinational corporation.

    --alteran

  • "they will deny the charge and, if that doesn't work, deny that the GNU is enforceable"

    Could this actually happen ??? If they pull that of, that might be the single worst thing that could happen to the Linux community !!! Oh man... I just see alot of "Let's hear it for the BSD license" posts coming after my post...

  • "NuSphere doesn't want to get in bad odor with the prickly, outspoken, dogmatic, GPL-happy open source community . . ."

    First he makes the above statement. Nothing wrong with that statement, except that it's coming from the editor of the "LinuxGram" site. You'd think a Linux-oriented site would be a little more supportive of the GPL. Sounds more like something Craig Mundie would say.

    Second, he needs to teach his writers that they can put more that 1-2 sentences in a paragraph.

  • There's been an editor's note added to the article which says:

    "We checked with our lawyers and they categorically deny having said anything that could have been interpreted as the comment that is attributed to them."

  • The case seems silly. MySQL database is double-licensed with GNU GPL and a proprietary license. Now MySQL has terminated the proprietary license, so if NuSphere distributes the product, it may break both against MySQL's copyright and GPL.

    I'm just not so sure that they can say that NuSphere breaks against both licenses, but just the proprietary one, which it has bought in the first place.

    Thus this seems just a case of creating a GPL violation from a normal license violation (if that really is the case). Probably the motivation is to damage the opponent more than reasonably, and to get the anger of the Free Software community, and perhaps also help in legal matters.

    This smells bad.

  • An unjust law is seldom enforced fairly
  • Being a lawyer does not grant any special magical ability to understand and interpret legal issues. Most lawyers know less about copyright law than most slashdot readers. There is no endowment of omniscience that comes with passing the bar exam. Lawyers are just people who have usually taken 4 years more school than you and who are generally considered dishonest. If you are licensed as a lawyer, then you are allowed by law to call yourself a lawyer. That is it. You can hire your accountant or baker or shoe salesman to represent you in court and counsel you on legal matters as long as it is perfectly clear that you don't think he is a lawyer.
  • what they have going for them. Who better to service, support, consult on the mysql database that the people that made it? I'm aware of several companies that use it now in the support of 9-digit revenue streams (yes, that's >100,000,000 $US, annually). Is it absolutely critical? No. Would Oracle work? Yes. But did the companies in question pick MySQL anyhow and would prefer to keep it? Yes.

    So how can the MySQL people make some money?

    Consult. Train consultants. Offer certifications in MySQL database design/administration

    Add features. No one said they weren't allowed to make any money. Maybe create some features (like NuSphere) and sell them, either a table type or more powerful administrative tools. They released the code under the GPL, but they still have the right to release other versions under other licenses, and if they weren't abandoning the primary database that was under the GPL, I personally wouldn't fault them

    Start a support organization. When I first started using MySQL, I was very tempted to send them the $1000 license fee they wanted for quick-turnaround email support, because I was relatively new to SQL at the time, and I needed rapid-response for my rapid-development. Anyhow, if you were going to shell out support money, it would seem to make sense to do so to an organization that had the developers at the top

    The list goes on and on. Do they need the trademark "mysql"? No. Try, "from the MySQL AB developers comes..." Should they have the trademark? Almost certainly, because we don't need another Microsoft/kerberos fiasco, and owning trademarks on names like "mysql" and "kerberos" can prevent the hostile interference, but MySQL has seemed pissed about the web site all along. How insecure can you be? Everyone knows all about their site. I've got mysql.com on my toolbar bookmarks.

    Anyhow, hopefully they'll wise up, and find a way to support themselves AND support the project. I don't think I'm being idealistic when I say that it is possible to do so.

  • You're completely wrong. When businesses pick mysql to support $100M+ operations, they'll happily pay $1000 or more if it provides them with value. I'd imagine that that's true on a much smaller scale, but I can say that if I had any need for mysql consulting, I'd happily PO a contract at $1000, and it would be trivial to justify next to the cost of an Oracle license.

    Just because MySQL is cheap doesn't mean it isn't the best choice for a lot of things -- just as apache being free doesn't mean that people won't pay for it. (And, in fact, people constantly pay hundreds of dollars for stronghold now, even if they could now legitimately compile and use openssl with apache)
  • The only things that prevents GPLd works from being closed up, encrypted and locked away behind onerous contracts and registration schemes is copyright law.
    In a world without copyright, who would have the money and motivation to do this? Commercial software publishers need a ban on 'unauthorized' copying to maintain any profit margin at all. Admit it: the GPL is a clever tactic to turn copyright on its head.
    Also:
    Every other copyright and IP related issue includes: non-copylefted political opinions and literary works (which RMS deems more than acceptable)...
    I don't think RMS deems copyright of literary works 'more than acceptable'. He's pointed out that copyright made more sense when it was an industrial regulation unlikely to intersect the life of an ordinary person.
  • The difference is that copyrights constrain everyone, while contracts only constrain parties to the contract. So if Alice has a copy of MS Office that she downloaded off Gnutella, it looks like someone somewhere broke his license agreement with MS. But Alice is not breaking contract law by using and distributing this program, because she is not a party to the agreement.
    As for bizarre encryption (content control) schemes, I think recent history shows that without the law backing them up they'll be cracked very fast.
  • MySQL, he says, demands a commercial license be used for code distributed over a network because of linking.

    What the license say "from memory" is that if your non GPL software only works with MySQL you are breaking the GPL.

    This is something that has bothered me for some time as no other GPL software is licensed as this.

    It seems reasonable that at least everyone who uses the GPL interpret it the same way.

    If this would be the general rule for the GPL you can not write non GPL software if it needs to communicate with GPL software to run. What I have in mind is deamons such as gconfd in GNOME which could be called a server. There are probably better examples.

    If I have interpreted this wrong please enlighten me.

  • If you deny that the GPL is enforcable, then you deny that every other software license based on copyright law is enforcable. Somehow I doubt that is going to happen.


    --------
  • ``... deny that the GNU(sic) is enforceable.''

    Speaking as the 1st person to ever engage in legal action to enforce a GPL (against an employer who wanted to violate a GPL back in 1989), I can say with reasonable certaintly:

    The GPL is enforceable!
    #include <the_following_disclaimers.h>:
    • under US law
    • in the general case
    • results will depend on the quality of your legal team and the quantity of your $'s ...
    • while copyright laws have changed since 1989, I recently received advice which suggested that these changes have not impacted the GPL enforceability
    • IANAL ... :-)
    We won. The employer was forced to obey the GPL. We even got my next employer to cover our legal bills ... but that is a story for another time that is best told over a good bottle of port. :-)
  • Okay, I don't know the specifics of how the program operates. From gnu.org:

    By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs.

    I take this to mean that if the programs are seperate executables which communicate via normal inter-program communication methods or shared files (although shared memory is a totally different animal), then the program is fine.

    How does the NuSphere software violate this? Does it make function calls or is it compiled with the GPLed code? Or is it simply a program that is performs some system tasks which the GPLed code then uses?

    I'm not trying to give you a hard time, I'd genuinely like to know what part is violated.

  • This doesn't sound like GPL infringement... (Score:3)

    by Gregoyle ( 122532 ) on Thursday August 02, 2001 @04:08AM (#2177165)
    This does not sound like GPL infringement on NuSphere's part. From the article:

    NuSphere says there are two components to Gemini ? a Table Handler and a Storage Engine. The Table Handler source code has been GPL since NuSphere MySQL Advantage started shipping in April. The source code to the Gemini Storage Engine, which is also included in Advantage and Pro Advantage, wasn?t GPL?d until the day before yesterday. Previously, Storage Engine was only available under a commercial license.

    IANAL, etc. etc. ad infinitum, but if NuSphere's description of the product is correct, this does not sound like it violates the GPL in any way. As long as they release the code for the GPLed programs they should be in the clear. The GPL doesn't say you can't release software that works with the GPLed code, just that you can't release software that uses the GPLed code. That includes library calls, but does not include interaction between programs (e.g. through signals, semaphores, etc.).

    Feel free to correct me if I am wrong (because if I am I'd like to know how it actually *does* work). As far as the domain name "hijack", unless MySQL actually tradmarked the MySQL name rather than just the logo, I think they have no ground to stand on. The article does not mention whether this is the case or not.

    Wow, I guess it sounds like I'm flaming MySQL something heavy. I really have nothing against them, and think they make a great product; I just think they are most likely wrong in this case (assuming that the information I have is correct).

  • (Assuming you really are who you say you are. And no, I'm not trolling or asking for flames.)

    While your clarifications may be welcome by readers here, I think it is not wise for you to post to this forum in the name of MySQL AB.

    Why? Because it makes it look like MySQL is trying to sway public opinion in its favor, and it's generally bad form to publicly debate a conflict that is currently in legal battle. I'd be surprised if your lawyers did not advise against it.

    Furthermore, by posting here, you diminish the apparence of integrity of your company, by showing it lowers itself to PR tactics to promote its view in a forum where the opposing party does not have a chance to respond. Slashdot is not a courtroom.

    Even if NuSphere responded here, I don't think anything constructive would come out of it, except rehashing on issues both parties are well aware of.

    Sincerely,

    Jay.
  • So, instead of trying to give information to its perhaps most important (potential) client group, they should just let misinformation and FUD fly?

    I think you misunderstood the point I was trying to make (which is very possible, considering I don't quite get how to put it clearly). It has nothing to do with "letting lawyers run the show", but consider that when litigation is in progress, libel and slander accusations start flying pretty quickly. Say one thing against your "opponent" that ends up refuted by a court and you're open to civil lawsuits afterwards. =\

    My other point was that there are "cleaner" ways to rectify facts: press releases, annoucements and other interviews, for example. By posting here, it looks like a desperate move to get the public on MySQL AB's side, besides risking igniting flamewars if the other party decided to post as well

    Running a company that is not a behemoth during litigation can quickly get frustrating, and without letting lawyers run the show as you put it, you come to realize that the game is being played on their ground, and that you'd better follow their advice. Unless of course you want to end up out of business and in debt over lawyer fees and damages. =\

  • As I read the comment, if GPL is found to be n/a or invalid, it doesn't mean _no restrictions_ apply to the code. In fact, the code's original author(s) would then probably have full copyright control over the code. So, everything GPL _grants_ would be nullified...

    And this, like he said, is probably even worse for than having to live with full restrictions GPL would impose.
    --

  • You don't see license infringement an issue? As in, "it's perfectly ok to disregard licensing"? Or as in "you haven't proved it happened"? Also, even if it's not part of the lawsuit, in OS/FS world it is relevant for developers, especially in trying to understand where the situation comes from. If the accusations (related to lawsuit specifics) seem petty, it may be that the history of the companies provides some more insight into why the lawsuits were filed.

    In one of the previous threads related to the ongoing battle, there was an interesting note by someone familiar with history of NuSphere (ex-Progress). Basically what the writer said was that NuSphere most likely had/has problems dealing with Open/Free S/W since it used to be more traditional properietary code company. That probably explains many problems and (potential) misunderstandings.

    I still can't blame MySQL AB for trying to make sure game rules are obeyed. It may have come as a surprise to NuSphere what exactly they get and what they don't get (ie. they weren't given a blanket "discard GPL restrictions for your product" rights... those could be given by dual licensing), but like they say, "ignorancy is no excuse"?
    --

  • If this is true, MySQL itself may be breaking other GPL licenses, or may not have a valid license.

    Well, if MySQL AB employs the actual authors/copyright holders of MySQL (like I think it does?), they can dual-license their code (triple license etc) however they want? Hell, they could create "users have to wear rainbow coloured donkey hats every friday if they use our product" license for NuSphere. :-)

    If they were/are using GPL'ed code created by other people/companies, this would of course be different... But I think that's more what NuSphere is doing, and having problems with.

    It would be interesting to know how other companies in similar situation (Transvirtual with Kaffe JVM, for example dual-licenses various versions of Kaffe) deal with problems like this? Are there other GPL-using companies that have created useful-enough applications that other companies are creating plug-ins/additions/enhancements? [kaffe.com]
    --

  • So, instead of trying to give information to its perhaps most important (potential) client group, they should just let misinformation and FUD fly? I actually fear you might be right, though. And I can easily imagine that lawyers would (or have) advice against trying to speak up, provide any truths that were not directly usable in lawsuit and so forth. :-/

    It's just that it depends on what do you want more; win the legal cases, or try to stay in terms with developers. Perhaps you can't do both... Just sounds like if I had to do that, I'd feel dirty as hell, bending over and letting lawyers run the show, just like Evil Big Companies do. Even if I knew it may be the smartest thing to do.
    --

  • Well, I'm not going to go through the whole "free" vs. "Free" lecture. Suffice to say that "freedom" doesn't have to refer to monetary payments.

    But more importantly, if you sell your house for $200.000, and only get $45.000 will you be happy that you got "lots of money" for that? Or will you perhaps be mad at getting screwed? If the deal was for 2.5 M U$ then 300 k U$ really is "only"?
    --

  • Part of the alleged problems is that the other company is not obeying the restrictions of (Open/)Free Software license in question (GPL). Since companies are involved, there are more relevant issues (relevant to the law suit(s)) contractual issues but I'm sure you can read about those in the article linked to as well as from previous ./ - articles about the case.
    --
  • I think you're missing the point of the GPL. The GPL exists BECAUSE every other copyright and IP related issue is unreasonable. The GPL is an intentional hack to turn the system on itself. Rather than just sit around and bitch about the way IP and copyright were being used, RMS developed the GPL to directly combat it - it was designed so that in order to get around the GPL you have to deny that copyright works. Either way, the goal is fulfilled. If you believe that you can rebel in both legal ways (protesting) and illegal ways (blowing something up) then yes, you can have it both ways. The GPL is a legal protest against the ideas of IP and copyright and piracy is an illegal protest against the same. I see no reason why we can't have both.

  • Why is it that some people think every copyright except the GPL is unreasonable
    Because Slashdot is composed of a great many different people who hold different and sometimes contradictory opinions. Also, very few of them can even spell "hypocrisy".
  • The Gemini table type was statically linked with the GPL'd MySQL code. See the entry in the GPL FAQ about the difference between mere aggregation and combining two modules. GPL FAQ - Mere Aggregation [gnu.org]

  • Select * from (Score:4)

    by NewbieSpaz ( 172080 ) <nofx_punkguy&linuxmail,org> on Thursday August 02, 2001 @03:44AM (#2177177) Homepage
    ...WeSueYou where 'money' > 0

    Damn the man. [fuckmicrosoft.com]
  • My response was to the vague scenario in AC's post - not to the article itself, which makes it a little off-topic.

    The AC was talking about MacOS (and the BSD core, which he wrongly assumed was GPL'd) installing "software" (in the application sense).

    Yes, static linking is creating a "work based on the program." You are right. That's just not what we were talking about.
    ---
  • kaisyain wrote:Well it could be unenforceable because it is too vague. What's a "derivative" work?

    From the GNU General Public License [gnu.org], Section 0:

    The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

    See what wonderful questions one can answer when he actually takes time to read the license?
    ---

  • From the GPL [gnu.org]:

    In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.

    So, just because both are on a CD or hard drive together does not constitute a derivative work.

    Read the license [gnu.org] for yourself. Don't come back here and pretend to know about the GPL [gnu.org] until you've read [gnu.org] it.

    You can read it online here [gnu.org].
    ---

  • I am an ardent (some might say bigoted :-o ) supporter of Free (as in speech) Software.

    However, I take exception to your suggestion that it is the responsibility of the users of free software to ensure that companies which intend to profit by it do so. It is solely the responsibility of the company.

    Yes, it is good when companies find Free Software business models which work. But that's what a market and competition are all about. If 'consumers' artificially support business models, then it does no good. The models need to evolve, which means some need to die.
  • they can get the GPL ruled unenforceable they might buy out NuSphere to take over the case ande squash the army of Penguins and GNUs.

  • Of course the GNU is unenforcable... its not even unix!

    Wait...GPL? What the hell is that?

    never let the facts get in the way of reporting.



  • I am against copyright in all forms.

    The GPL is different though. It is copyleft. It means freedom and it's elite.

  • The list goes on and on. Do they need the trademark "mysql"? No. Try, "from the MySQL AB developers comes..." Should they have the trademark? Almost certainly, because we don't need another Microsoft/kerberos fiasco, and owning trademarks on names like "mysql" and "kerberos" can prevent the hostile interference, but MySQL has seemed pissed about the web site all along

    that is because the orignal mysql.org site didn't mention Mysql.com or mysql AB. but it did mention nusphere.com. therefore poeple could think that the nusphere people are the developers of mysql and not mysql AB.

  • No. The author is only not in control of the software written by someone else. This is no different from any other copyright situation where there is a derivative work - copyright law doesn't allow you to release YOUR work if it includes someone ELSE's work, unless you have permission from that someone else. The GPL isn't controlling the author's work, copyright law is. The GPL gives the author a way to distribute the work anyway, which is to release it under terms no more restrictive than the GPL (and, of course, the original work must remain under the GPL).

  • Either they fixed it, or your browser has a problem - it renders just fine here on Mozilla (Slowaris 2.6) and view source shows normal quotes in the source.

  • Scary revenue (Score:3)

    by TOTKChief ( 210168 ) on Thursday August 02, 2001 @07:11AM (#2177192) Homepage

    This whole tiff is rather interesting, but not as interesting as this:

    MySQL co-founder David Axmark said, "We need income from the trademark to survive as a business."

    Yeesh.

  • It is in their best interest for their licenses to mean something. However, their licenses and the GPL are fundamentally two different things. The GPL is a distribution license, framed in accordance with the appropriate section of US copyright law (I don't remember the section number). "[A]ss-disgusting proprietary licenses" are usage licenses, and have no basis in current US law that I can find. Therefore, a yes or no on the enforcability of the GPL won't have much effect on the proprietary licenses. On the other hand, since the GPL is grounded in copyright law, it is more likely to be upheld.

  • This would be a good court case... (Score:4)

    by unformed ( 225214 ) on Thursday August 02, 2001 @04:07AM (#2177197)
    to test the GPL on.

    Why? because there's no problems with either company being too big. Imagine trying to take AOL or Microsoft to court regarding the GPL, simply because they've got the money to hire good lawyers and "convince" the judge they were correct.

    However, in a case like this, where both companies are pretty much equal, the judge will be more apt to look at the case fairly.
    Granted, the GPL may not even come up in this case, as it's not the primary charge, but even still....

    that's my penny's worth...

  • Interesting (Score:3)

    by tmark ( 230091 ) on Thursday August 02, 2001 @05:04AM (#2177199)
    It's interesting how every other copyright- or IP-related lawsuit gets shit here. Why is it that some people think every copyright except the GPL is unreasonable ? Others here have argued (not entirely convincingly, mind you) that if the GPL is unenforceable, other licenses may be as well. In a similar but stronger vein, the GPL copyright depends on the validity of the right to protect IP by copyright - if you want to discard notions like IP and copyright, you might as well throw out the GPL too. But some people seem to think all forms of copyright violation are OK, EXCEPT GPL violations, which are somehow sacrosanct. You can't have it both ways.
  • That the first court test of the GPL would be over MySQL? Not me for sure.

    As much as I hate to see OSS groups fighting, it sure seems more common (ala DotGNU/Mon and others)

    Shoudl be interesting to see where this goes. As a user of both pgSQL and MySQL, I think we can all do without the PostgreSQL is better sniping. MySQL has done a lot for the web and Open Source and it will be a shame if this fight impacts their development work.

  • Nusphere is owned by Progress Software, a 271 million dollar company. Chump change to Microsoft, but maybe big enough to attract the attention of the FTC.
  • It seems like the deal was about two things:

    1: The right to distribute mysql. Since it's GPL'd the value of this is zero so this point is void.

    2: The right to use the MySQL trademark. This should give them the right to register a homepage, how could it not?

  • What did they buy? (Score:4)

    by kalleanka2 ( 318385 ) on Thursday August 02, 2001 @03:50AM (#2177209)
    I still wants to know what exactly NuSphere did buy from MySQL AB?

    MySQL seems to think that NuSphere didn't get any, MySQL just got loads of cash for nothing.
  • I'm not so sure this is the best case to test the GPL on. This part right here bothers me.

    Johnston alleges ironically that MySQL itself breaks the GPL by adding conditions, something GPL disallows. MySQL, he says, demands a commercial license be used for code distributed over a network because of linking.

    If this is true, MySQL itself may be breaking other GPL licenses, or may not have a valid license. Anybody know more about this?

    GreyPoopon
    --

  • Reading the article, gave me a feeling that either one of them lies or both lie, just to get their way. about saying that the GPL is not enforcable, i don't think that this is right. I think it is enforcable, and one should realize that be looking back a few weeks. You can see M$ trying to create a bad name for the gpl cause they can't touch it. Do you think that microsoft with the myriads of lawyers would be afraid to touch any program under the gpl if they new they could defeat the gpl in court? i don't think so.
    regards,
    My Thoughts
  • We have not said the GPL violation is related to the trademark violation. We have observed and reported to NuSphere a number of violations, including:
    * breach of the interim agreement we had
    * trademark infringement
    * breach of the GPL licence

    And to enforce our rights we have filed a counterclaim.

    We have no termination tactics. On the contrary, we have made every effort to reach a final agreement with NuSphere. We offered them new revenue streams and "most favoured nation" terms, but they reacted by suing us.

    -Marten Mickos, MySQL AB
  • MySQL AB's interpretation of the GPL licence is based on the interpretation of the Free Software Foundation. See http://www.gnu.org/copyleft/gpl-faq.html#MereAggre gation

    MySQL AB -has- trademarked the "MySQL" name. The trademark is registered in Sweden and 13 other countries, and applications have been filed in other countries, including the US.

    -Marten Mickos, MySQL AB
  • Under the interim agreement, NuSphere had the right to fair use of the MySQL trademark and the right to use and register "NuSphere MySQL", "Rocket MySQL" and "Enhanced MySQL". "Fair use" is defined in the legislation and has a very limited meaning.

    NuSphere never bought the rights to the trademark, and never had the right to set up a site called mysql.org.

    The $300k consisted of three monthly payments for June, July and August 2000 and nothing more. The payment was for being part of the GPL announcement of MySQL AB and for beginning to ship a product that had the word "MySQL" in its name.

    As the interim agreement wasn't followed by a final agreement, it terminated. MySQL AB continued to work in good faith with NuSphere in anticipation of reaching a final agreement. When MySQL AB learned that NuSphere violated the terms of the interim agreement despite numerous contacts and notices, MySQL AB formally informed NuSphere that the interim agreement was terminated. And even then, we at MySQL AB tried to reach a solution by flying from Scandinavia to Bedford, MA to meet with NuSphere and sort out the situation. After three days of meetings, NuSphere surprised us by serving a lawsuit. That is how this whole thing started.

    -Marten Mickos, MySQL AB
  • We might be both blind and stupid, but the GPL violation is quite clear.

    Only after we sued NuSphere for GPL violation did they post the source for Gemini on a website. Please also note that the GPL licence requires you to ACCOMPANY the software with the source code or a written offer to supply the source code. To date NuSphere has not to our knowledge even admitted the GPL violation.

    We have submitted a counterclaim of some 35 pages with detailed information on the violations we claim NuSphere has done. This claim is a public document and anybody can go to the courthouse to study it.

    -Marten Mickos, MySQL AB

  • What they bought (Score:5)

    by martenmickos ( 467191 ) on Thursday August 02, 2001 @05:38AM (#2177228)
    NuSphere (or actually Progress at the time) paid for being part of MySQL's GPL announcement in June 2000 and for being able under the interim agreement to use the MySQL trademark in their product name in three limited forms - not for registering any domains.

    They made three monthly payments and then stopped paying.

    The sum they paid may sound like "loads of cash" to one person, but with some 30 people on its payroll, MySQL AB's cost level is much higher.

    -Marten Mickos, MySQL AB

  • Re:See www.gnu.org for interpretation (Score:5)

    by martenmickos ( 467191 ) on Thursday August 02, 2001 @07:35AM (#2177229)

    In the GPL violation that MySQL AB has sued NuSphere for, the Gemini software component was statically linked to the GPL'd MySQL server.

    Some more info: the MySQL DBMS can make use of a number of so called table handlers that go between the server and the storage system (which usually, but not always, is a disk). A vast majority of all MySQL installations run on the MyISAM table handler that MySQL AB has developed. Gemini is also a table handler, and it can be used in conjunction with or as a replacement for MyISAM. In addition to Gemini (which was developed by Progress / NuSphere) there are other third-party table handlers: Berkeley DB from Sleepycat Inc. and InnoDB from Innobase Oy. Each table handler has its pros and cons, and it depends on the application which one(s) you want to use. Overall, the existence of multiple table handlers for MySQL extends the range of applications for which MySQL can be successfully used. In a web application, MyISAM gives you excellent performance. In a traditional client/server multi-user environment, one of the third-party table handlers mentioned above may be most useful. A table handler for MySQL cannot be used as such with any other DBMS.

    I hope this information is useful!

    -Marten Mickos, MySQL AB

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