MySQL AB and Nusphere Go to Court Over GPL 238
A little fairy whispered in our ear: "MySQL AB is seeking a temporary injunction against NuSphere, even though they've finally released the source code for Gemini and MySQL Advantage. According to the GPL, NuSphere lost the right to redistribute when they violated #3 by not providing the source code originally. The FSF will testify tomorrow in court, according to this Newsforge article." Newsforge and Slashdot are both part of OSDN. We've done a couple of previous stories about the MySQL AB vs. Nusphere conflict: the original story, a follow-up, and a note about a countersuit.
Update: 02/26 21:15 GMT by T :
bkuhn (Bradley Kuhn of the Free Software Foundation) writes: "The FSF has a press release on the matter and affidavit that we filed is also available."
Ramifications? (Score:5, Interesting)
Re:Ramifications? (Score:4, Informative)
Re:Ramifications? (Score:2, Informative)
That's the "old" BSD licence. Problem is that you can quickly end up with pages and pages of author credits. The "new" BSD licence - which is essentially the same as the X11 licence - no longer requires this.
BSD licenses (Score:2)
Credit still has to be given in all documentation provided with the software, as well as within the source code. "Give credit" in this case really means that the whole software license, including a disclaimer, has to be reproduced with every copy.
Re:Ramifications? (Score:2)
Yep, this is exactly right. And if Microsoft were to do that, we'd all win. Microsoft users would get a much more stable server platform and the BSD users would get another point to brag about.
Re:Ramifications? (Score:2, Interesting)
If MS came out after this "viral" license I think that IBM and others who have strongly supported Linux (and hence, the GPL) would make that a costly proposition. Regardless of what IBM may think about the GPL, having the legal foundation of your marketing brain-child ripped out from under you is not a pleasant proposition. Plus, would people continue to develop code for Linux w/o the GPL? Another reason for IBM (and others) to step in.
Additionally, potential gov't actions - not just the US gov't, but also European governments who take a dim view of MS - may also be a deterrent to MS trying that little strategy. Even so, I wouldn't put it past MS to try...
Re:Ramifications? (Score:3, Insightful)
Good question! What if portions of the GPL are declared to be bad, or if the whole GPL is declared invalid, does that mean that a new licence can be drawn up and all the existing projects can be allowed to relicence themselves under the new licence, or are they stuck as GPLed forever?
Re:Ramifications? (Score:3, Interesting)
But there's more, the GPL includes a statement that if part of the GPL was regarded as invalid in court then that shouldn't invalidate the rest of the license.
One more thing though, Linus has in the past changed Linux's license to GPL v2 and "no other version". This he was not allowed to do in the first place because he didn't ask permission to the many contributors, but if he wanted to bump the version number or say that it again falls under GPL vX or higher version he'd have to ask permission to everyone that has contributed since the license change. But of course everyone will again just let Linus get away with that.
Re:Ramifications? (Score:3, Informative)
Nitpick: The GPL doesn't actually say this, but the text declaring that the work is licensed under the GPL usually (though not always) does.
Re:Ramifications? (Score:2)
This is incorrect. Before the change in terms, all GPL code in the kernel could be licensed under the GPL v2 or any later version, at the licensee's option. That means that I can take that code and and use it under the terms of the GPL v2 specifically. These terms allow me, among other things, to incorporate the code into any product distributed under the GPL v2.
This is essentially what Linus did: All the GPL code contributed to him for inclusion in the kernel was under the GPL v2, though the authors may have allowed other licenses also. The authors of such code, by allowing Linus to license it under GPL v2, gave him explicit permission to redistribute it according to the terms of that license. The "or higher version" clause does not require that he follow the terms of all available licenses; it allows him to choose among the allowed licenses and use one of them.
Re:Ramifications? (Score:2)
Any clarification on this if im wrong?
Re:Ramifications? (Score:4, Insightful)
In fact, the most likely reason it has never been tried in court is because nobody seriously thought they could overturn it, so they complied rather than face what they knew to be a losing court battle.
Without GPL you simply have no license to (Score:5, Informative)
The GPL is clear on this point. If, for whatever reason a court of law decides the GPL is invalid in a particular case, then you lose any right to distribute derivative works.
Thus, there is no incentive for a company to try to invalidate the GPL, because without it they have no rights to distribute derived works. The only option a company has is to prove it is in compliance with the GPL.
The one interesting thing here I observe is that once you have been found in violation of the GPL only the holder of the copyright can reinstate your ability to distribute derivative works-- and there is no obligation to do so.
Thus, companies using GPLed code in works they distribute need to pay special attention to compliance as none-compliance carries with it the possibility being permanently blocked from using the GPLed code again.
Admitedly though, it's not complicated. Simply ensure you distribute your source along with the product, and all is well.
Otherwise put, if you want to use GPLed code, you have to share the code of your derivative work with everyone.
Re:Without GPL you simply have no license to (Score:2, Informative)
You are allowed under the GPL to create a derivative work, say a modification particular to your business, and as long as you don't distribute the application outside of your business, then you are not obligated to share the code of the derivitve work (although you're encouraged to if the code might be useful to others).
Re:Without GPL you simply have no license to (Score:2, Interesting)
This doesn't seem right. Why can't I, a random person with a fresh copy of MySQL plus source, modify MySQL very slightly then pass this derived work onto the defendant under the GPL, thus reinstating their right to redistribute.
The article refers to article 4 of the GPL, but there's nothing there that makes special reference to the copyright holder. In fact, clause 6 says that if I redistribute the program then the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions.
Surely that means that even if NuSphere were once in violation of the GPL, the copyright holders cannot take away their right to distribute derivative works so long as someone (e.g. Red Hat, Debian, the cat's mother...) is willing to distribute to them.
Re:Without GPL you simply have no license to (Score:2)
Re:Without GPL you simply have no license to (Score:3, Informative)
yes, but . .
>If, for whatever reason a court of law decides
>the GPL is invalid in a particular case, then you
>lose any right to distribute derivative
>works.
I am an attorney, but this is not legal advice. If you need legal advice, contact an attorney licesed in your jurisdiction.
This is *far* from clear, though possible. I assumes that part of the GPL is stricken, the rest upheld, and no other defenses prevail.
Other possible outcomes:
*finding other terms to the license to replace the stricken terms (reformation)
*finding that the failed licensing placed it in the public domain (unlikely without odd facts)
*finding that the copyright holder is estopped
While I believe, in the general case, that the most likely result flowing from a purported violation is that the "copier" has no rights, the other outcomes are possible, at least with the right facts. Of them, I would hazard a guess that reformation would be the most likely to arise.
hawk, esq
Re:Without GPL you simply have no license to (Score:2)
The RMS Problem (Score:3, Insightful)
The KDE Team felt they were within the bounds of the law, FSF felt otherwise. Either there was no FSF code involved or they felt that their case was week, so they focused on complaining and launching a competing project.
When the FSF and Trolltech worked out their differences regarding Qt licensing, RMS issued a statement applauding the change, forgiving KDE and it's users, and cheering on GNOME. Once Qt went GPL, there is no reason for the FSF to support GNOME (which sits on top of libraries with the "bad don't except under special circumstances" LGPL license ) over KDE except for NIH.
RMS handled it with less tact than he normally uses, that is what pissed everybody off. The "forgiveness" could have been done in nice legalese on their website without trying to get it coverage.
Alex
Re:The RMS Problem (Score:3, Informative)
Don't you mean "the same amount of tact that he normally uses"? The man isn't exactly fames for his tact...
Re:Without GPL you simply have no license to (Score:2)
To date, neither Mr. Torvalds nor Aladdin have forgiven KDE. I can only assume then KDE is still illegal and I am still a criminal for distributing it. Come arrest me.
Without GPL, it belongs to the author (Score:2)
The work is still copyrighted by the owner. If GPL was invalidated, you would need to negotiate an agreement with the relevant owner(s) if you wanted to use it. With any amount of collaborative input ("we used the libraries from project X and the drivers from project Y which was derived from project Z") this would be a real minefield that could see you sued further down the track (ala GIF). In the meantime, a new GPL would be circulated and pretty much overnight, most people would be distributing under "son of GPL".
Me thinking out loud:
I think it would take a ruling that took copyright away from owners to compromise things. Imagine a "Fair and Reasonable Corporate Access to Copyrighted Materials" Act that watered down copright for individuals. Say under the excuse that copyright shouldn't be used to protect DCMA circumvention and such copyrights are therefore forfeit.
Xix.
Re:Without GPL you simply have no license to (Score:2)
The idea of making the GPL itself globally invalid is an unlikely possibility. Personally, I only see this happening through some kind of federal leglislation making the GPL kind of licensing illegal. Since the GPL only affects how you distribute derivative works of copyrighted software given to you for free, that is a very remote possibility.
Re:Without GPL you simply have no license to (Score:2)
Re:Ramifications? (Score:2, Interesting)
Hmm.. are they the same?? (Score:4, Insightful)
MySQL.org presents their website in a manner that does not give credit where credit is due.
For one, if you go to mysql.org you will find that it doesn't say whether it developed the software, it just says it's got mysql software available for 'free' download. But the mysql.com guy is correct, in that you cannot download any software without registering with mysql.org first. That indicates to me that it's not 'free' because now mysql.org has customer data to use to market their product to. Plus, it doesn't say: "Hey, we didn't write the software, mysql.com is where you can find that info. We just improved upon it." Besides, I don't think
Re:Hmm.. are they the same?? (Score:4, Interesting)
NuSphere clearly didn't do "the right thing" and I hope they get their butts kicked.
Re:Hmm.. are they the same?? (Score:2, Funny)
Yeah, I mean, I'd never even think of using a commercial .org site. Especially to read news.
Re:Hmm.. are they the same?? (Score:2)
MySQL.org presents their website in a manner that does not give credit where credit is due.
For one, if you go to mysql.org you will find that it doesn't say whether it developed the software, it just says it's got mysql software available for 'free' download. But the mysql.com guy is correct, in that you cannot download any software without registering with mysql.org first. That indicates to me that it's not 'free' because now mysql.org has customer data to use to market their product to. Plus, it doesn't say: "Hey, we didn't write the software, mysql.com is where you can find that info. We just improved upon it." Besides, I don't think
I completely agree the site is deceptive, although I'm not sure that is a violation of any law. Same thing with not giving credit for the code on the page. It may not be good practice, but as long as they follow the terms of the GPL (making source available, etc) then they are in the clear (legally at least). And I fully agree with the
Nobody says it has to be free. (Score:2)
You can't change the licence, but you can charge *anything* (no, not equal to cost) for getting it from you. Translation: I can charge you $1000 to download MySQL from me, but you're free to distribute it at no cost. Read the licence, it's all in there.
Kjella
An important case (Score:3, Insightful)
Not a SMALL company ;)) (Score:2, Insightful)
NuSphere is owned and financied by PROGRESS
http://www.PROGRESS.com/ which is really a
giant company like Oracle...
Re:Not a SMALL company ;)) (Score:2)
The involvement with MySQL is just about soaking up some of the low-end database market.
Pass them by, and if you need a better database than vanilla MySQL, go for PostgreSQL. It has many features of the expensive Progress RDBMS, and can do some things that are far from easy in Progress.
I might start recommending Progress again when they post Python bindings or protocol specs on their website.
I'm confused.. (Score:2, Interesting)
[xaxxon@chopper log]$ nslookup www.mysql.com
Server: localhost
Address: 127.0.0.1
Non-authoritative answer:
Name: www.mysql.com
Address: 64.28.67.70
[xaxxon@chopper log]$ nslookup www.mysql.org
Server: localhost
Address: 127.0.0.1
Non-authoritative answer:
Name: www.mysql.org
Address: 64.28.67.70
Did I mis-read?
Section 4 of the GPL (Score:5, Informative)
Basically, since the GPL is the only document granting you permission to use the software, violating the GPL revokes your rights under it. That means that if it is found that they violated the GPL (which seems a foregone conclusion if the reporting is accurate), they will no longer be able to distributed MySQL code at all. In other words, put completely out of that business.
Now that is something other companies will take seriously in the future. (IANAL and all that of course.)
Re:Section 4 of the GPL (Score:3, Redundant)
Enforceability of the GPL is problematic at best. It's no more legal than any other software license, and consider how many objections the average
After all, if you can make the legal case that "clicking OK doesn't really count as accepting a license", you can easily make the case that "doing absolutely nothing (which is all that is required to accept the GPL) sure as hell doesn't count as accepting a license". If Microsoft can't implicitly force you to accept a contract, neither can the FSF. The law doesn't care if you're nice or not.
However, even if (as I believe) the GPL is legally unenforceable, that probably doesn't hurt anything. GPLed code is still protected by copyright, so even if the GPL itself is powerless, the copyright holder (if such can be established) can still sue to prevent redistribution. The GPL, in this context, basically constitutes a non-enforceable statement of "we won't sue if you release source code".
Even this might not hold up in court. Trademarks are lost if you don't protect them. I don't believe the same applies to copyright, but only an IP lawyer would know for sure the legal ramifications of selectively suing people who don't follow your (arbitrary, non-legal) license.
Hopefully the courts will shed some more light on this soon.
Re:Section 4 of the GPL (Score:2)
Ok, if the GPL is found unenforcable, where do these people think that they get any rights to distribute the program at all?
accepting the GPL (Score:4, Informative)
Re:Section 4 of the GPL (Score:5, Informative)
Totally wrong.
My objection to Microsoft's clickwrap licence is that it only purports to grant me a licence to "use" the software on a single machine, which I already have by 17 USC 117, since I am the "owner of a copy". Since their contract does not give me anything I don't already have, it is unenforcable because there is no "consideration".
The GPL is a unilateral grant to do something that you cannot otherwise do without violating 17 USC 106. It is not a contract at all, but a unilateral grant. If the GPL is unenforcable then NuSphere is commiting copyright infringement by distributing a derivitive work.
Re:Section 4 of the GPL (Score:2)
Bravo! Your payment for the software doesn't count as consideration, because you paid for it *before* you clicked the button, and you paid that fee to someone *other* than Microsoft (like to the clerk at CompUSA). The MS EULA is not a legally binding contract.
Trying to unilaterally impose a contract after the fact is ludicrous.
Re:Section 4 of the GPL (Score:2)
Even though Softman v Adobe didn't reach the matter of shrinkwrap licences, it all but decides it.
When you walk into the store or whatever and hand over cash for the cardboard box, you get a little piece of paper called a receipt, which lawyers will call a "contract of sale" because it specifies item, quantity, and price. At that point you are the owner.
Since the software vendor probably wasn't even a party to the contract of sale, they cannot even claim that it is the "completion" of the sale by "acceptance of goods". That undercuts the only theory that any court has employed to hold any type of shrinkwrap licence enforcable.
In fact, I don't even think the shrinkwrap should count as an "offer" even if it did purport to offer you something in consideration, because its method of acceptance produces no manifestation of assent outside of your own property. I call this attack by offer. It goes something like this: "Microsoft, I make you the following offer: if you would like to grant me a worldwide licence to all of your intellectual property in exchange for an unqualified option to have my old socks, then simply have one of your executives turn his or her monitor off and on in the next day".
It doesn't work because the fact that you are claiming that an otherwise legitimate use of their property is acceptance does not allow you to attach a meaning to that use. The fact that they did it may simply indicate that they believe you are irrelevent. You have the right to install and use the software by 17 USC 117. The fact that it purports to offer you an "accept" option does not mean that you cannot click your mouse on the YES button as you please. Similarly, the MS executives can turn their monitors off and on as they please without assenting to your offer.
conspicuous notice on outside may be enforceable (Score:2)
Re:conspicuous notice on outside may be enforceabl (Score:2)
It's important to know that all of the caselaw on this subject makes it very important to look at the exact circumstances. For example, if you are installing from one disk onto more than one computer, then you DO need a licence and in that case it is sort of like the GPL: if you don't accept the EULA then nothing else grants you multiple machine use. The "nothing else" part fails in the case of single machine use because there is something else: 17 USC 117, which is not subject to approval by the vendor.
Re:Section 4 of the GPL (Score:2)
I didn't follow this discussion originally, but I really like your description, and the clear concise way this was described.
I would assume that you are a lawyer? (I'm sorry for all those lawyer jokes... [grin])
Is this why the software makers want UCITA so bad? I would assume that the legality of EULA's are on VERY shaky grounds, having never been tested, and they know it. Knowing this, they want some REAL legal cover. Reply if you can.
Thanks again!
Cheers!
Re:Section 4 of the GPL (Score:5, Insightful)
Yes, you are all absolutely correct that without the GPL, it is illegal to distribute the software at all.
However, I evidently didn't explain myself well enough. My point was not that it would be legal to distribute software without the GPL, far from it.
The GPL grants you additional rights if you follow certain provisions. If you don't follow those provisions, you're subject to ordinary copyright law (which prevents you from redistributing the work). If you do follow those provisions, you have the legal right to redistribute the software.
Now, work with me here. You cannot sue somebody for a GPL violation. Period, end of story. All you can sue them for is copyright violation, since without the GPL's provision you can't copy the software. *All* GPL violations will be tried in court as copyright violations, because that is the only law you could have broken. The only penalty for breaking the GPL is revocation of your license, which leaves you subject to copyright law.
You're all looking at the enforceability issue backwards. The enforceability of the GPL does not *ever* protect the people who offer to license the software. You don't need the GPL for that, because you have copyright law -- copyright law is completely sufficient to shut people down from using your software. You don't even really need a license for that, because you're free to sue company A because you don't like the way they are using your software, but leave company B alone because you're happy with what they are doing. This is completely legal, and you don't need the GPL for that. (I realize that the GPL fulfills a very important role as far as formalizing the agreement and making it easier to get people to comply, but legally it isn't necessary. You could just sue anybody whose use of your code you disagreed with.)
The GPL is just a formalized statement of "I won't sue you if you distribute source". It protects the people *using* the software, because while copyright law would ordinarily say "you can't do this", the GPL says "you can if you distribute source". The GPL does not grant one iota of extra power to the people licensing the software, it grants it all to the people using it -- a statement of protection from lawsuit.
So firstly, it's pretty much irrelevant. The legalese of the GPL could be replaced with "I promise I won't sue you if you
As far as the legal enforceability of the GPL, it may or may not hold up in court. Since everybody is going to get this backwards, I'll spell it out. "Hold up in court" means use it to *protect* yourself, not to sue somebody else. Again, we've already established that the only law being broken is copyright -- you cannot use the GPL to attack somebody for violating it. The GPL is only good for *defending* yourself, to say "no, look, I'm not violating copyright because the GPL allows me to do this". *That* is what needs to be tested in court, and that is what I'm not sure will necessarily work. Theoretically, you might be able to successfully sue somebody for using GPLed code completely in accordance with the license, and *that* would be the "not holding up in court" that I'm talking about.
It would obviously be horribly unethical to do so, and any reasonable judge might well throw the case out, but a good lawyer could probably make a case against the ability to use GPLed code in the absence of a formal agreement.
Hope that clears up what I meant by my first post.
Re:Section 4 of the GPL (Score:3, Insightful)
Basically, they'll argue that you can't give away 99% of something and then come and ask for the whole thing back like an Injun Giver. The motion will be for the GPL to be ruled "equivalent to public domain."
A contract does not mean only what the contract writer wants it to mean. That is why you have recourse *heh* if you sign a misleading contract. The analogy will be drawn that you could buy a house for $1 on the condition that you must paint it pink at midnight on July 4th, 2015. When 2015 comes around you have a vested interest in the house beyond your initial contract $1 -- therefore the pink-at-midnight clause could be challenged.
Re:Section 4 of the GPL (Score:2)
I don't think that is remotely possible. If there's a weak point in law it's that it tends to side with licensors and those who make the rules. GPL is a way of making the rules... and unlike, say, the BSD license, it makes very STRICT rules of what you must do to comply.
In essence, to a lawyer, the GPL is totally unlike giving away. It is laying strict rules for a collaboration that HAPPENS to be with people you don't even know. It has REQUIREMENTS that must be obeyed, or the deal is off. The fact that it produces a pool of 'cooperating' software is of no interest to a lawyer... that's a social effect, we're talking about what the contract is...
If it ever did become invalid, first of all I think it would become invalid only under certain conditions (don't ask me what, because I _don't_ think it will ever be 'ruled' something other than what it is). And second of all, it would absolutely not fall through to being public domain. It would fall through to being normal copyright law, and people affected would have to renegotiate their licenses, perhaps they would have to get direct consent from the authors of code they used or something. There is just no way it would be deemed public domain- it so plainly is NOT trying to be. In some senses (ask a GPL hata ;) ) it is not 'giving away' anything...
Re:Section 4 of the GPL (Score:2)
After all, if you can make the legal case that "clicking OK doesn't really count as accepting a license", you can easily make the case that "doing absolutely nothing (which is all that is required to accept the GPL) sure as hell doesn't count as accepting a license". If Microsoft can't implicitly force you to accept a contract, neither can the FSF. The law doesn't care if you're nice or not.
Unlike shrinkwrap licenses, the GPL does not resrtict rights that the user would otherwise have. Rather it gives the user a right to redistribute which copyright law by default prohibits. If you want this _extra_ right then you also have some responsibilities. This could not be further from a shrinkwrap license. On the other hand, I'm not a fan of either.
But see, here is the thing. (Score:2)
But you see, with the GPL, there is no negotiation. What prevetns someone from re-licencing the software under the GPL again? Nothing. As long as they are currently complying with the terms, they can keep using it.
Why is the GPL different? Because nobody CHOOSES to let someone license it.
Re:Section 4 of the GPL (Score:2)
I think this is an overbroad interpretation. NuSphere violated the license, so MySQL AB can sue for copyright infringement. However, it seems to me that all it takes for NuSphere to get a new GPLed copy of MySQL is to download it again. Presto, blammo, reinstated--no "forgiveness" necessary.
It's the same as if Microsoft caught me pirating Office. If I have any money left after the BSA and MSFT lawyers are done with me, I can still wander down to Best Buy and get a licensed copy of Office.
In the case of GPLed software, it's just a lot cheaper to get a new copy.
Re:Section 4 of the GPL (Score:2)
I agree that GPL compliance is important, but I am not clear on the legality of this license termination business. What is to keep NuSphere from just downloading a fresh copy of the mySQL sources -- from MySQL AB or another GPL licensee -- and working from there? That copy would, after all, come with a fresh new license.
The doctrine that MySQL AB seems to be pushing is that once an entity violates GPL on a product, not only has that entity's existing license to the product been terminated, but that entity is tainted, forbidden from accepting any future license to that product. This does not appear to be what the GPL itself says. The GPL speaks of voiding the instant license, but not of tainting the offending licensee from accepting a future one.
Does anyone have an explanation for the disparity?
Re:Section 4 of the GPL (Score:2)
Wrong. The *law* gives you the right to use any software you have legally obtained. Period. You won't have the right to create derivative works, or to redistribute it, but you do have the right to USE it.
GPL enforceability (Score:2, Insightful)
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.
Re:GPL enforceability (Score:2)
It would NOT be in the best interest of any company wanting to use GPL'd code to try and overturn the GPL.
Re:GPL enforceability (Score:2)
Here's what I'm mentally debating; let's say the GPL is struck down and invalidated, wouldn't that then mean that anyone distributing a derivative work would be in violation of the original creator's copyright? As you said the GPL no longer gives them right to create derivative work?
Now I'd imagine that most/all of the original coders probably wouldn't sue, but could they if they wanted to? Could someone sue Redhat for distributing their formerly GPL'd code out of spite (they could just say the license they were using is not valid anymore, so what defence would there be to being able to use the code).
Just doing a little musing... I'll let someone with more license knowledge debate the question, just throwing it out there.
One word: Microsoft (Score:3, Insightful)
More information on FSF Website (Score:5, Informative)
Re:More information on FSF Website (Score:2)
Unfortunately, the lawyers seem to have twisted things into a situation where you can be held liable for public domain software that breaks, or at least that's what we're led to believe. That's why the BSD license still exists.
Timeline on Source Release? (Score:3, Interesting)
and also...
3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:
a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)
I don't see, anywhere in the liscense, a timeline specified as to when any changes to source code must be supplied. Anyone know of a quote from the GPL that specifies that the source must be made available at the time of binary release? AFAIK, they don't have to release the code to anyone who doesn't specifically request it, and who has a copy of the binaries; and I don't think time-frame is brought into it.
The timeline is very clear (Score:2)
The timeline is very clear and obvious, at least to anyone who can read english, namely:
You have to make the source code available the moment you begin distributing the GPLed software.
Even if you choose option (b) or (c), the source code has to be available, and provided on request, the moment you begin distributing your derivative work.
Where is the rocket science in this?
Re:Timeline on Source Release? (Score:2)
A short blurb in one section of the manual that "sources will be available in some future release" (or whatever the exact wording) is not a specific offer to supply source.
Re:Timeline on Source Release? (Score:2)
is Mysql AB abusing of the GPL? (Score:2, Insightful)
So where do we go from here? These guys believe that they can enforce article 4 of the GPL against Nusphere for an infraction to the GPL that occured in the past and which has been corrected since then as Nusphere published its source code. I personnaly believe this is not The Right Way. It totally goes against the spirit of the GPL: software must be free, and although we want to protect the original copyright holder, we must not discriminate against the users.
Many people could try to profit from the GPL in an illegal way, does it mean that we can put them on a blacklist? If they decided to change their attitude and in turn abide to the license, I don't see why we would still punish them. They can be a valuable ressource in improving the software, even though it clearly goes against MySQL AB's agenda.
Hey, if you're going to act that way, why did you release it under the GPL in the first place? By retaliating the way they do MySQL AB makes me wonder who between them and NuSphere has the weakest principles.
Using the GPL as a tool for revenge is definitely not what Stallman & followers originally intended.
Of course, MySQL AB could and should sue NuSphere for misrepresentation, moral copyright infrigment and dubious corporate conduct. They should seek damages, which they are fully entitled to under their country's Copyright Act. I for one find it unacceptable to simply lock Nusphere out.
It is sad to see that the first judicial test of the GPL is witness to such a hijacking. And the worst thing: the FSF has it's arms in the mud upto the shoulders.
This is one of these situations where Stallman actually should open his big mouth like he usually does.
I don't think that the judge will let that injonction go through. Their case is too weak to achieve that. Anyways in the worst case, what will prevent Nusphere from starting another company?
pertools [pertools.com] will bring you the thruth.
Article 4 of the GPL is critical (Score:4, Insightful)
The reason Eben Moglen has gotten dozens of companies to give up and to submit is because of section 4. Without it, we'd have a lot less free software than we do now. In the past, the threats of nuclear war have been private, but very serious (if you're in the Linux business and lose your right to distribute, say, glibc, you're dead meat).
It's important for everyone to understand that if you violate the GPL, it's not sufficient to just stop violating, you need to get the copyright holder's explicit permission before you can ever start copying, modifying, or distributing the program whose copyright you violated ever again. People got pissed off when RMS talked about "forgiving" the KDE project, but too many people don't realize that from a legal standpoint this forgiveness was required (though evidently only a couple of less-important KDE applications ever had any FSF-owned GPL code in them). Certainly RMS could have been more diplomatic (though maybe not, it isn't one of his talents).
Re:Article 4 of the GPL is critical (Score:2)
>don't realize that from a legal standpoint this forgiveness was required (though evidently only a couple of less-important KDE applications ever
>had any FSF-owned GPL code in them). Certainly RMS could have been more diplomatic (though maybe not, it isn't one of his talents).
Actually the "forgiveness" combined with "Go GNOME" was a bad insult. It has not been forgotten by anyone. It is good to see though that RMS finally wants cooperation between KDE and GNOME.
Add to this insult (for creating the first GPLed Desktop Environment!) the fact that NO KDE application had ANY FSF or RMS-copyrighted code in it. There was a little code from Alladdin (kghostscript) and the linux sources (kfloppy). That was it
Finally until this day it is not certain if the RMS strict interpretation of the GPL is valid or not, because QT might well be considered as part of the Linux distribution.
Re:but article 6 still exists! (Score:2)
That allows them to re-derive something (else?) from the new copy.
What is questionable is the status of what was derived from the old copy. Who if anyone owns it (or even can own it).
Re:is Mysql AB abusing of the GPL? (Score:2)
MySQL AB Abusing GPL for private vendetta (Score:2, Interesting)
Basically, MySQL AB is arguing that because NuSphere violated the GPL *in the past*, they have forfeited their right to distribute a GPL app, even though the source code in question has since been released in compliance with the terms of the GPL. What are the ramifications if they succeed? Does this mean NuSphere will be unable to distribute any GPL applications? Will the NuSphere contributions be deemed invalid? Will MySQL AB then distribute MySQL with Gemini tables while NuSphere is not allowed to? (Gemini tables are a NuSphere contribution.)
Isn't it sadly ironic? The first time GPL is tested in court, and I hope they loose, for all our sakes. No matter which way the decision goes, the dispute hurts the entire free software community, and will make corporate contributions to code base that much harder to come by. And think of what Craig Mundie from Microsoft will have to say about this! All over what was originally a domain name dispute. (If your new to this conflict, NuSphere paid MySQL a huge chunk of change for the right to distribute MySQL, (that's right, paid for the right to distribute a GPL app.). In the process, they created a mysql.org web page that did not give any credit to MySQL AB, and indeed, only made SQL Source Code available to registered users. MySQL AB charged NuSphere with GPL violation. In response, NuSphere made the source code more available and released the source code for their own proprietary modules. It is still not clear to me, however, what exactly MySQL AB thinks the millions they were paid by NuSphere was supposed to be for. Somehow, the right to distribute a GPL app for a limited time just doesn't make sense.)
MySQL AB, I thank you very much for your hard work and development of MySQL. But please, stop pissing on the GPL to advance your own agenda. You can debate whether the money you were paid gave NuSphere the right to hijack MySQL trademark until the cows come home; but all GPL issues have been put to bed months ago!
Re:MySQL AB Abusing GPL for private vendetta (Score:2)
[snip]
Has NuSphere released the source code for all previously distributed versions of their bastardized version of MySQL?
MySQL AB protecting open source developers (Score:2)
We have said earlier that we welcomed the opensourcing of Gemini when it finally happened. But NuSphere still denies having violated the GPL in the first place, which, if left at that, may set a damaging precedent and is a potential threat to ANYONE developing GPL'd software. I believe it is in everyone's interest that the GPL is a defendable licensing model.
And, for those who may not know, we at MySQL AB have made numerous attempts to settle the case out of court.
Marten Mickos, MySQL AB
Re:Follow Up (Score:2)
I dunno.
Copyright prevents redistribution of original or derived works. Only the GPL (in this case), lets you redistribute, and that license is void if you fail to honour its terms. So, yes, you could distribute future versions if they were not derivative works, which is unlikely.
Obtaining the code from a different source wouldn't help, as your right to redistribute has been withdrawn by the copyright holder, and applies over all copies. Establishing another company would be considered as a "sham" by the court.
To put it simply, you'se fuck-ed (and not in a good way).
However, I suppose you could distribute
prior versions, and back-port future diffs into them, if you are now in complience.
Re:What about section 6? (Score:2)
Otherwise, consider that I receive two copies of a License for something. Can I void one by non-complience, return to complience, and pull out the other copy? I don't think so.
Still, a contract is always interpreted in the most negative light by the court when it comes to the rights of the person who drew up the contract (the reasoning being that that had the opportunity to make it as air tight as possible). I presume that a license agreement would be treated similarly, so you may have a valid "out".
I'm curious as to what the court will say.
Does revocation of GPL rights perpetuate? (Score:2, Interesting)
What I'm wondering is if that revocation is permanent, absent forgiveness by the licensor of the MySQL code? It will obviously be so for that particular version of MySQL. But what about later versions of MySQL? New code, new license. Does their initial unrepentent infringment of the GPL mean that they are forever barred from redistributing newer versions of MySQL whose license they haven't violated?
My take.. (Score:2)
Re:My take.. (Score:2)
You are limiting your viewpoint to assume that software is a product when in fact, it can also be a service. Open Source doesn't make money on licenses. But that doesn't mean it doesn't make money. If someone pays you to write Open Source software that they need (say you are a consultant, perhaps), then it doesn't matter if the software itself is free because it wouldn't exist without them paying you to create it. Additionally, you can provide them with support contracts, training, etc. Software itself is a small component of a total solution that clients need.
Re:My take.. (Score:2)
Who says you need to be hired? Work as a consultant. Provide complete solutions. There's an enormous market for that which many programmers neglect. You write free software as your clients needs require them. If an Open Source package reaches "perfection" and nobody needs more code added (unlikely), then you move on. It makes things interesting, really.
second, if I wanted to do tech. support, I wouldn't be a programmer.
If I wanted to sit in meetings, I wouldn't be a freelance programmer. (No job is perfect)
This should be simple. (Score:2)
If precise figures cannot be had, then an estimate should be created based on the length of time NuSphere was distributing product that did not comply with the GPL.
A price per copy should be constructed based on similarly featured products in the marketplace. It could get expensive for NuSphere, but commercial software is an expensive commodity.
As MySQL is open-source, it may make more sense to have NuSphere donate the money to an organisation like the EFF or the FSF, to support Open Source software as a whole.
Re:First legal test? (Score:2, Offtopic)
Re:First legal test? (Score:3, Insightful)
If anything, it's MORE credible, given that it doesn't impair fair use or free speech, unlike many proprietary licenses. (The "No negative reviews allowed" McAffee license comes to mind here...)
Re:First legal test? (Score:2, Funny)
Hence, given the pro big business mentality of the current administration, GPL will be thrown out of the court. Just watch it happen.
Re:First legal test? (Score:2, Informative)
Unfortunately (or, fortunately, depending on how you look at it), corporations no not have Constitutionally guaranteed rights.
Re:First legal test? (Score:2)
Paranoid mumblings are all very fun, but to do what you suggest, the court would have to throw out copyright law. Do you see many big businesses itching to obliterate copyright law and harm their ability to prosecute people for copying their IP without permission?
Re:First legal test? (Score:2, Insightful)
The State at least makes an attempt in democracy. Corporations would be perfectly happy with pure tyranny of money (=unbridled capitalism). So yes. I will accept the rule by the State instead that of "free corporations" any day. Corporations and free capitalism are giving you a "free society" as long as you are ready to join the pack of predators feeding on the weak of the society. That's how profit's really made.
Re:First legal test? (Score:3, Interesting)
Common sense and existing law may say that making a single digital copy of a piece of music, software, etc. should fall under "fair use," but the RIAA and MPAA can still get trash like the DMCA made into law, and defended in court. Remember, this is America, where money == power, period.
Re:First legal test? (Score:2)
This _is_ the end of the GPL
GPL is UNRELATED to EULAs (Score:5, Interesting)
GPL is MUCH less interesting. By default, you have NO right to distribute software. The GPL is a distribution license.
This Slashdot mental masturbation is childish. The odds of the GPL being overturned and everyone's software under license being made public domain is pretty close to 0%. It is only a concern on Slashdot.
The GPL hasn't been to court because every violator has reached a settlement.
This case sounds like NuSphere is fucked. The portion in question suggests that if you violate the terms of the license the license is voided. This is pretty standard stuff.
Here is the question that the court will answer.
If I break the GPL, I can be sued for damages, etc., and must stop distribution. My license is revoked, etc., etc. Can I then go out, download a fresh copy and distribute under the terms of the GPL? Stallman says no, I'm not certain. That's where this case is questionable.
However, this is a good test case for the GPL. The question of derivative work is interesting. I'm not certain that the linking scenario creates a derivative work. However, since this company distributed a modified MySQL with their additions, they are CLEARLY distributing the work.
They need to establish that they have a separate license or did so under the GPL.
Regardless, the GPL being invalidated would not make things Public Domain. Without license you cannot distribute, so if the license falls, no distribution under GPL v2. FSF releases GPL v2.1 within a week and any provision that includes (or later version) is fine, everyone else needs to update.
Alex
Re:GPL is UNRELATED to EULAs (Score:2)
What if mySmallCompany breaks the GPL and it stopped from future distribution of a particular piece of software? I then found myOtherSmallCompany. Can I distribute the software in a compliant manner? Obviously this solution won't work for large companies (IBM) but what if my company has 10 employees?
Exactly... (Score:2)
I suppose they could file for an injuncton and argue that the company is a shell. Who the hell knows.
Regardless, I think that this Slashdot bullshit about GPL code becoming public domain is beyond silly.
Now, the outrageous claims of some proponents (anything that touches GPL code or is written by people that have looked at it becomes GPL) should get swatted down.
I also don't think that you can try to pull trade secret bullshit (prove you didn't see this) with GPLed code, but we'll see.
Alex
Re:GPL is UNRELATED to EULAs (Score:2)
If I break the GPL, I can be sued for damages, etc., and must stop distribution. My license is revoked, etc., etc. Can I then go out, download a fresh copy and distribute under the terms of the GPL? Stallman says no, I'm not certain. That's where this case is questionable.
It seems that you couldn't download the same piece of software (as that is the same license, just a different copy of it). I would assume you lose rights to use the GPL for that product. But the real question is what happens when they release an upgrade? Can you once again use the GPL, as this is a different product (well, a different version) and a new license (as a license only applies to the actual product and version it is issued with)? Can they find an old copy of MySQL and just use that, since it's a different license?
It doesn't seem they could ban you from ever using the GPL again, or even using it on different products from the same company. So I doubt they could stop you from using it on different versions of the product either.
Same version too (Score:2)
When I negotiate contracts, we go through multiple revisions. Then we sign something. We could always amend the contract (sign a new one that says how we are changing it) and most have a termination clause.
If I terminate my contract with entity X, we can sign a new contract later. Situations change.
In this case, you have put in an unsigned license that says this licesne is available universally. It allows me to license the code from you to distribute and license others to redistribute.
I broke a section, therefore your termination clause automatically kicks in. The old license is gone. Oh no, I'm without license so I go to get a fresh license from you, and low and behold, there is one with the same terms. I agree this time and I am licensed.
Now, the GPL could stipulate that you lose your rights to all other applications under the GPL licensed from that entity. As the copyright holder, that is okay. Okay, no problem, I have myNewShellCompany download the software, then send me a copy. My company has now licensed it from myNewShellCompany, and your restriction on my agreeing to a fresh license from you goes away.
I don't know, I could see this restriction being less powerful than MySQL AB and the FSF want it to be. Who knows, maybe the courts will enforce it reasonably, and say that it is reasonable to say no more distribution for you if break the GPL.
It makes sense that you can get an injunction and sue for damages if someone ships your GPL code in violation of the license, but I'm not sure that you can prevent them from shipping it within the context of the license given that you have a universal license grant.
Alex
Re:GPL is UNRELATED to EULAs (Score:4, Interesting)
Great Point!
I'm not a lawyer, so I have to ask:
What does this mean to american children?
As I understand it, Americans under age 18 cannot be bound to contracts.
Therefore, if EULAs are contracts, and you are a pre-teen American, Should you be allowed to install software? Do you need to obey the EULA?
Re:GPL is UNRELATED to EULAs (Score:2)
You can use it in any way you like, that is your responsability.
As for it's application to children. If you cannot abide by its terms, because of age, patents, royalty considerations etc... then you don't have a license to distribute the software covered by the GPL. In such a case, you cannot legally distribute it.
That is all.
Re:GPL is UNRELATED to EULAs (Score:2)
What "consideration" have users been given in order to enter into the contract? Being allowed to use the software is already provided by copyright law, so that doesn't count.
I'd say that most EULAs are void. (UCITA and the DMCA are irrelevent, since they will obviously be struck down in a few years.)
Not the law (Score:2)
This is a common bit of Open Source mythology that was at one time a reasonable approximation of the truth. But it simply isn't the law. Whatever may be the way we wish it were, the cases do not support this proposition.
In fact, the cases support the contrary proposition: that running software typically entails loading content from some medium onto RAM, and thereby constitutes a "reproduction" under Section 106 of the Copyright Act. Thus, without a license, the owner of the copyright has an exclusive right to preclude a user from running the software.
Not that this result isn't controversial -- academics have assailed these cases in law reviews, and the Congress recently limited their applicability in certain cases that are not relevant here (embedded operating system software in connection with purchase of hardware).
But controversy doesn't change the law. While the previous author clearly spouted the "ole FSF party line," that party line isn't consistent with the Copyright Act and corresponding case law.
The challenges aren't what people here think! (Score:2)
However, the right of a copyright owner to license distribution is NOT questionable. If the GPL fails, then anyone distributing is at the mercy of the copyright owners. The GPL doesn't protect the owner (copyright protects the owners) the GPL protects the distributor that licensed it.
Section 4 is a strange beast, that is the crux of this case. If Section 4 isn't legal, the the FSF loses its stick.
This entire case revolves around Section 4, NOT the concept of licensing copyrighted work.
Read the people that think it could be challenged, they have bizarre views that the lawyers on Slashdot laugh at.
There are questions about the GPL, but the onces that Slashdot's laymans voice aren't the real ones.
IBM is putting $1B behind Linux development... Their legal team has likely gone over the GPL. Sure there are questions that only a court can determine (namely, what constitutes a derivative work and is Section 4 legal), but this Slashdot hand wringing is rediculous.
It's popular here to bash the US and its courts... just because ACs get modded to +5 by calling the US government corrupt doesn't make it so.
Alex
Yes and no (Score:2)
The Future of Free Software (Score:4, Insightful)
Because, this case will create precedent for all GPL'ed software, and whether or not corporations can steal the work of other people and call it their own! It's not a matter of which database software is better, but whether or not individual people should be able to create enforcable copyrights for their own software, and expect them to hold up in court.
If the GPL doesn't hold up in this case, expect a whole slew of proprietary packages to start popping up all over the place, each with a surprising resemblance to other, slightly inferior, but still groundbreaking "Libre" alternatives. It will suck the air out of all those alternatives, and once the alternatives are sucked dry, the Open Standards will go with them. (Remember -- Microsoft isn't the only company out there bent on World Domination through Embrase and Extend tactics.)
Re:In other gnews.. (Score:2)
RMS suggested something other than "Linux" because it removes the ambiguity of just calling everything "Linux". He suggested "GNU/Linux" because he wanted some credit for the 10 or so years of work that made the whole system possible. Is that really so much to ask?
Technically speaking, "GNU/Linux" (GNU over LInux) makes sense just like "TCP/IP" (TCP over IP) makes sense.
Re:no freedom (Score:2)
Re:no freedom (Score:2)
s/BSD person/BSD advocates and users/