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Re: the GPL is a license not a contract ..

From: Hyman Rosen
Subject: Re: the GPL is a license not a contract ..
Date: Wed, 11 Mar 2009 11:44:16 -0400
User-agent: Thunderbird (Windows/20081209)

Alexander Terekhov wrote:
How come that judge Saris did NOT consider alleged violation of the GPL
to be copyright infringement in MySQL v. Progress case, Hyman?

What in that document leads you to believe that?
That ruling simply denies a request for a preliminary injunction
against Progress, for the reason you quoted.

The judge is not applying a copyright law standard here (overtuned
> by the Supreme Court not long ago), which would have given MySQL an
> automatic presumption of irreparable harm that it would be up to
> Progress to rebut.

It wasn't much of a standard even while it stood. Here's some
discussion on the Patry blog:
It concludes with
    In sum, the presumption of irreparable harm cannot be
    justified on a blanket basis, and if applied at all,
    is a mere burden-shifting device, not evidence. Once
    some contradictory evidence is introduced by the
    nonmoving party, the presumption vanishes. If plaintiff
    fails to introduce convincing evidence of actual
    irreparable harm, the request for injunctive relief must
    be denied.

In this case, the plaintiffs had already presented the said
contradictory evidence, showing that they had distributed the
source code to their product. Therefore the proof burden of
irreparable harm fell back onto MySQL.

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.

Automatic termination is the least convincing part of the GPL.
I believe that one gets a fresh license with every copy, so
automatic termination is cured by formally getting a fresh copy
and then complying with the GPL upon distribution.

Notice, however, that you have now yourself presented evidence
of a US judge reading the GPL, understanding its provisions, and
agreeing that they are legitimate - that not distributing the
source causes a breach of the license.

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