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Re: The GPL dream is finally over!

From: Alexander Terekhov
Subject: Re: The GPL dream is finally over!
Date: Sat, 16 Aug 2008 19:39:47 +0200

Linonut wrote:
> MySQL gets protection for its trademark, but the other guys can still
> use the GPL code.
> Who's crazy here?  It's not the GPL "true believers", that's for sure.
(NuSphere: needed because MySQL AB won't accept code)

Johnston says at the heart of the issue is a pending lawsuit in
which the two companies are suing each other over their changing
relationship and trademark issues.

Neither side would talk in great detail about the pending lawsuits,
but Johnston says NuSphere hasn't been allowed to participate
in the existing community at MySQL AB's

"We tried to submit changes [to the MySQL code] under the GPL to
that site, and they were refused on a commercial basis, not on a
technical basis," Johnston adds. "The code works fine, and we
ship it as part of our GPL version of MySQL ... but they are not
available from, because they won't accept anything they
don't own the copyright to."


MySQL AB's Mickos, on the phone from Finland, says the MySQL code,
while being Open Source, has always been created almost entirely by
project founders Michael "Monty" Widenius and David Axmark.

"It has never been a 'bazaar' product like in The Cathedral and
the Bazaar," Mickos says. "It's not a product everybody has
contributed to, and that never was the intention.

"Monty has never accepted code contributions from other people,"
Mickos adds. "If he has gotten something [from someone else], they
have been donations to him, and he rewrites them, but that's minor.
There never has been a situation where anybody could freely
contribute code."


Johnston says the two companies worked together on a press release
about Gemini being part of version 4 of MySQL, but NuSphere is still
waiting for that code to be released. "We checked the Gemini code
into that source tree, but that source tree hasn't left the gate
yet," he says. "Now they've refused our ability to contribute Gemini
at all. So that's an interesting claim."

To set the record straight...

"We filed a claim on 11 July 2001 for trademark infringement, breach
of the interim agreement, breach of the GPL license, and unfair and
deceptive trade practices."

Breach of the GPL license claim had really nothing to do with interim
agreement. Judge Saris' reliance on interim agreement was limited to
the claim of trademark infringement, not breach of the GPL.

"Specifically, MySQL has demonstrated (1) that the agreement
between the parties was an interim agreement that terminated after
August 2000; and (2) that Progress violated Paragraph 6 of that
agreement by using the MySQL trademark after the termination and
by using an unauthorized combination trademark. Continued use of
the trademark will cause MySQL irreparable harm as a matter of law."

That's it regarding interim agreement.

"With respect to the General Public License ("GPL"), MySQL has not
demonstrated a substantial likelihood of success on the merits or
irreparable harm."

Here's reasonably concise "why did the FSF effectively lose in Progress
v. MySQL")

On 7/30/05, Raul Miller <> wrote:
> I count four issues the judge considered, with a bit of detail on each
> of those issues.

I didn't say six "issues".  I said "six reasons why it would be
inappropriate to grant a preliminary injunction for breach of the GPL
terms, any one of which would have been sufficient."  Let's walk
through them together.

> 1) Likelihood of success:  Here, the judge discussed the dynamic
> linking issue, said that MySQL would probably win, but that the issue
> was in dispute.

That's not what the opinion said.  The two sentences are:  "Affidavits
submitted by the parties' experts raise a factual dispute concerning
whether the Gemini program is a derivative or an independent and
separate work under GPL para. 2.  After hearing, MySQL seems to have
the better argument here, but the matter is one of fair dispute."  And
as such not suitable for judgment as a matter of law.

Note that the facts of the case involved:
  - an essentially _undocumented_ _internal_ interface to which no
other outside party had AFAIK ever implemented;
  - deceit on Progress's part about whether they included the full
source of mysqld as distributed on their release CDs (they didn't),
and deliberate use of _static_ linking and failure to provide even a
binary version of the Gemini table type as .o or .a, leaving customers
unable to build a bug-fixed mysqld without losing the table type;
  - large cash payments from Progress to TCX DataKonsult (predecessor
to MySQL AB) which were reported at the time as "financing" TCX's move
to the GPL -- and hence extensive negotiations between the parties
about what conduct they both understood the GPL to demand of Progress.

Despite all of which, the matter remained one of "fair dispute" that
could not have been resolved at the summary judgment stage even if
MySQL's case had been otherwise flawless.  So that's blocker #1.  #2
was that, even if the evidence had originally been adequate to support
the "likelihood of success on the merits" prong, the judge was not
"persuaded based on this record that the release of the Gemini source
code in July 2001 didn't cure the breach."  So much for the "automatic
termination" clause.

> 2) Potential for irreparable harm:  [This is what i was talking about.]
> The judge listed a number of particulars about why irreparable harm
> was not likely.

Blocker #3:  "In any event, even if MySQL has shown a likelihood of
success on these points, it has not demonstrated that it will suffer
any irreparable harm during the pendency of the suit ..."  The judge
is not applying a copyright law standard here, which would have given
MySQL an automatic presumption of irreparable harm that it would be up
to Progress to rebut.  As well she shouldn't have; as there were no
sufficient grounds for rescinding the contract, no claim of copyright
infringement could succeed.  And MySQL was unable to make a showing on
the facts that they would suffer _any_ harm during the pendency of the
suit, let alone harm that could not be repaired through monetary
damages after the fact.

> Of particular importance were sworn statements made by Progress
> that the source code had been released and that the conflicting
> license requirements were being withdrawn.  (This is what I was
> talking about, above -- the issue was basically resolved at the
> time the judge wrote that order.)

"... particularly in light of the sworn statement that all source code
for Gemini has been disclosed and the stipulation, given by Progress
during the hearing, that the end use license for commercial users will
be withdrawn."  That would be blockers #4 and #5; either of these
voluntary stipulations (nothing to do with a consent decree) would be
enough to void the "potential for irreparable harm" prong of the
preliminary injunction test, since proving harm would require both a
means by which Progress could extract customer revenues that "should"
have gone to MySQL (difficult if MySQL, along with the rest of the
world, also has Progress's source code) and an intention of continuing
to do so (difficult if Progress abandons the practice of charging for
end-user licenses).

> Perhaps, when you say there were six reasons, you've broken
> this issue down into several pieces?
> 3) balancing of relevant equities:  This favored Progress as
> suspending distribution of Gemini would have destroyed them.

Blocker #6:  "Finally, because the product line using MySQL is a
significant portion of NuSphere's business, Progress has demonstrated
that the balance of harms tips in its favor regarding the use of the
MySQL program under the GPL."  This is the third prong of the
preliminary injunction test, and MySQL failed this one too.  Even if
they had demonstrated a likelihood of success on the merits and a
probability of "irreparable" harm if Progress were not immediately
enjoined, Progress's position was such that an injunction would do
them greater irreparable harm -- and in a contract (not tort) action,
that means no injunction.  This, too, would have been automatically
given to MySQL if this were a copyright infringement case.

> 4) the effect on the public interest: since the copyright issue
> was basically resolved, this didn't get much discussion.

It didn't get much discussion because the only person who claimed the
public interest was in any way affected was Eben Moglen (in his
affidavit), and the judge wasn't buying.  This prong is sometimes
deemed sufficient to override the other three -- but not in this case.

> > And it was implicit in the structure of the decision that she rejected
> > both the notion that the GPL is a creature of copyright law and the
> > plea in Mr. Moglen's affidavit that the "automatic termination"
> > clause was central to its "enforcement".
> Eh... it was explicit in the decision that the copyright breach had
> largely been repaired.
> So, yeah, in contexts where the breach is repaired, the automatic
> termination clause can get ignored.

There's no such thing as a "copyright breach" and you can't "repair"
copyright infringement.  MySQL had a plausible (but not proven) case
that Progress might have been at one time in breach of the GPL's
contract terms.  But in order to justify rescission of the contract,
the breach would have to have been 1) proven, 2) not repaired by
subsequent conduct, and 3) not just material enough to justify damages
but of a nature such as to "strike at the heart of the contract
between the parties".  These are proper contract law standards and
neither the "automatic termination" language, nor the claim to be a
"copyright-based license", nor Eben Moglen's plea on behalf of his
enforcement weapon swayed the court.

> > Had she taken either of these propositions even a little bit
> > seriously, she would (as she well knows) have been obliged to analyze
> > the request for preliminary injunction according to a completely
> > different standard.
> This would be rather pointless given that Progress seemed to
> be committed to repairing the breech.

If this were a copyright infringement case, the judge's opinion would
contain boilerplate language about "automatic, rebuttable presumption
of irreparable harm" and a citation to whatever is the usual First
Circuit opinion acknowledging that standard in copyright cases.  (It's
possible that said citation will be from another circuit, such as
Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983), which
appears to be used for this purpose in several circuits.)  And whether
or not the outcome would have been different, the text of the opinion
certainly would have been.  I harp on this point because it's
unambiguous evidence that at least one federal judge not only doesn't
buy "copyright-based license" but won't even give it the time of day.

> > Oh, they may well know the truth (as I understand it); but if so, they
> > do not choose to advertise their knowledge.  Alternately, if they have
> > a foundation for their claims that my amateur archaeology has been
> > unable to unearth, they seem to have no desire to expose it to public
> > scrutiny.  Why should they, when widespread belief in the accuracy of
> > their interpretation gets the job done anyway?
> As usual, you're implying a lot with what you say, but actually saying
> very little.

Let me try again.  Eben Moglen has a J. D. from Yale.  He has been
admitted to the bar in New York and before the Supreme Court.  He has
clerked in district court and for Justice Thurgood Marshall.  He has
held a professorship of law and legal history at Columbia for over a
decade.  He is not ignorant of the law.  It is my opinion that he
knows damn well that there is no such thing as "copyright-based
license" and never has been.

It's very useful as a propaganda device to make it appear that there
is some rich vein of unmined law in this area, and therefore some
difficulty in applying the mountain of case law relevant to any given
fact pattern involving the GPL.  But the truth as I see it (and I am
not alone) is that the GPL is a somewhat unconventionally drafted but
otherwise completely routine contract of adhesion.  If this is in fact
the truth, then many of the things that he, and other attorneys
closely associated with the FSF, say in public about the GPL are
untrue, perhaps even deliberately misleading.  That doesn't inspire my

Is that a bald enough statement for you?

- Michael


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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