[FYI] (Fwd) FC: John Palfrey's report from Boston in GPL MySQL license lawsuit

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Wed, 27 Feb 2002 17:09:54 -0500
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: John Palfrey's report from Boston in GPL MySQL license lawsuit
Send reply to:  	declan@well.com

Previous Politech messages:

"Boston judge to hear first test of GNU license used in MySQL"
http://www.politechbot.com/p-03188.html

"NuSphere replies to Politech post about FSF and Boston lawsuit"
http://www.politechbot.com/p-03194.html

Background on the difference between the ordinary GPL and the Library
GPL (aka Lesser GPL): http://www.gnu.org/philosophy/why-not-lgpl.html

---

Date: Wed, 27 Feb 2002 13:49:43 -0800 (PST)
From: John Palfrey <jgpalfrey@yahoo.com>
Subject: One perspective on Courtroom 13's Open Source story
To: declan@well.com
Cc: ekelly@ropesgray.com

Dear Declan:

I thought I would offer one person's take on what just transpired in
Courtroom 13 at the US District Court in Boston, where Judge Patti
Saris heard arguments in the complex dispute between MySQL and
NuSphere/Progress, which centered in no small part on the use of open
source software said to be governed by the GPL.

As previous posts to politechbot reported earlier, both sides had sued
the other last summer.  At this stage, Judge Saris was considering
whether to grant a preliminary injunction on two issues: 1) NuSphere's
use of the MySQL-related trademarks and 2) NuSphere's use of certain
code developed by MySQL and governed by the GPL as part of its Gemini
product. Though she did not issue any orders on the spot, Judge Saris
made it plain that she intended to issue a preliminary injunction
against NuSphere's use of the marks in question (likely with 90 days
to stop usage of the marks) and that she was not going to issue a
preliminary injunction in the more complicated matter of the use of
the MySQL code and terms the GPL.

1. The trademark issue was a fairly straight-forward contract
construction discussion, with no cutting edge issues involved (from my
perspective). She started with the presumption that irreparable harm
existed, and never moved far off that point.

2. The harder issue, and the one on which she will almost certain not
rule at this time, is the issue of whether NuSphere's use of the MySQL
code under the GPL, and what NuSphere provides to end users pursuant
to the GPL. One interesting point: it did not appear that anyone was
arguing that the GPL did not apply or was not a valid license. It
sounded as though the GPL was treated as any other license would be in
a software context. Judge Saris seemed to focus on the question of
whether Gemini constitutes an independent or a derivative work and
whether the harm caused to MySQL met the irreparable standard. Experts
-- none of whom were permitted to testify today, though Eben Moglen,
perhaps among others, was in the room -- had filed what the Judge
called "classic book-ends," or perfectly conflicting reports, on the
question of the derivative work. Much of her questioning surrounded
whether Gemini could operate without MySQL (as distributed, MySQL
contends, it cannot) and whether or not the two products had been
"integrated". She seemed to be moved by the NuSphere argument that
there was no co-mingling of the source code and that "linking" to
another program did not equate to creation of a derivative work. She
also pushed hard on the questions of whether the distribution clause
of the GPL was violated, though little progress was made on that point
by either side. Ultimately, Judge Saris seemed unconvinced that MySQL
could show a likelihood of success on the question of irreparable
harm.

Judge Saris amused the crowd by referring to the open source movement
as "like a religious movement." She also elicited snickers from
certain members of the audience by referring to "Microsoft
WordPerfect."

Before concluding the proceedings, she urged the parties to attempt
settlement negotiations.

Best,

John P.

_______________________________

John G. Palfrey, Jr.
Ropes & Gray
One International Place
Boston, MA 02110
jpalfrey@ropesgray.com
617.951.7037 direct dial
617.951.7050 facsimile

***********

Date: Wed, 27 Feb 2002 13:54:26 -0800
From: Craig Dickson <crdic@yahoo.com>
To: Declan McCullagh <declan@well.com>
Subject: Re: FC: NuSphere replies to Politech post about FSF and
Boston lawsuit In-Reply-To:
<5.1.0.14.0.20020227125949.0247fa00@mail.well.com>

Mark Lorion wrote:

 > MySQL AB and the Free Software Foundation contends that
 > NuSphere violated the GPL by simply linking proprietary software to
 the > MySQL system using a public API. MySQL AB is interpreting the
 GPL so broadly > that any commercial software that comes into contact
 with free software must > also become free.  By that standard, a
 commercial email program would > violate the GPL if it downloaded
 mail from a GPL-compliant mail server.

As someone who is neither associated with MySQL AB, NuSphere, or the
FSF, but who is familiar with both sides' statements on this issue and
the FSF's traditional interpretation of the GPL, I would like to
comment on this.

MySQL AB asserts that NuSphere's proprietary Gemini code is statically
linked to GPL'd MySQL code. As I understand the term "statically
linked" (I am a software engineer, so I expect I know what it means),
this means that Gemini and MySQL code are commingled in a single
executable file, and therefore together form a single program. This is
clearly not the same thing as an email client communicating with an
email server; in that case, two independent programs are involved.
This is a distinction that I have seen the FSF make many times, and it
seems to me a very sensible one, as it preserves the notion of a
"software commons" without making it impossible for proprietary
software to interact with free software. If it is true that Gemini
code is statically linked to GPL'd MySQL code, then Mr. Lorion's
analogy is wildly inapt and displays a lack of understanding of the
GPL -- information about which is publicly available on the FSF's web
site.

Craig Dickson

***********

To: declan@well.com
Subject: Re: FC: NuSphere replies to Politech post about FSF and
Boston lawsuit From: Jake Donham <jake@bitmechanic.com> Date: 27 Feb
2002 16:40:59 -0500

Hi Declan,

You'll probably get plenty of mail about this, but I wanted to give my
armchair lawyer's opinion that Mark Lorion seems to be misreading the
GPL when he says:

     Mark> MySQL AB and the Free Software Foundation contends that
     Mark> NuSphere violated the GPL by simply linking proprietary
     Mark> software to the MySQL system using a public API.

The applicable language in the GPL is

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

The NuSphere code cannot be reasonably considered an independent and
separate work in itself in the absence of another implementation of
the MySQL APIs, because the code is useless without linking to MySQL.
If there were another implementation of the MySQL APIs, NuSphere would
still violate the GPL by distributing their code together with MySQL.

The Lesser GPL exists for authors who want people to be able to link
non-GPL'd works to their code without infringement, but MySQL is not
distributed under the LGPL.

     Mark> MySQL AB is interpreting the GPL so broadly that any
     Mark> commercial software that comes into contact with free
     Mark> software must also become free.  By that standard, a
     Mark> commercial email program would violate the GPL if it
     Mark> downloaded mail from a GPL-compliant mail server.

A commercial email program can be reasonably considered an independent
and separate work because it also works with non-GPL'd mail servers.
Also, presumably the mail client and server are not distributed
together. "Coming into contact" is not a violation of the GPL.

Jake

***********

Date: Wed, 27 Feb 2002 11:23:27 -0800 (PST)
From: Abraham Ingersoll <abe@dajoba.com>
To: Declan McCullagh <declan@well.com>
Subject: Re: FC: NuSphere replies to Politech post about FSF and
Boston lawsuit

I'm a free-software publisher who has dealt with similar license
issues, even so far as bringing up concerns about the GPLv2 with
Bradley Kunz and in turn, Eben Moglen.

Just as Moglen's deposition concludes, I think it's pretty clear-cut
that NuSphere violated the GPL by not releasing the source when they
should. MysqlAB's not a happy camper from previous issues, and has now
decided to stick it to NuSphere with the GPL. Too bad for NuSphere.

As far as NuSphere crying about this setting a bad example for the
free software, and whining about it's implications in the business
marketplace -- SHUTTUP ALREADY!

NuSphere built something off of MysqlAB's back and then didn't play by
the rules (the GPL). Usually this wouldn't be too big of a problem,
but they had previously pissed off Monty (MysqlAB's lead) in many
other ways.

What's truly disgusting is how NuSphere's trying to muddy the waters
with claims about the GPL's supposed chilling-effect on intellectual
property rights.

That's just not the issue. The issue is whether they followed the GPL.
They did not. Now how exactly a judge is going to sort this out, and
how enforceable the GPL really is -- that's going to be fun to watch.
But NuSphere crying like a baby .. all that does is simply show what a
shallow corporation they really are.

NuSphere, bad. GPL, good. MysqlAB, dunno.

Abe

***********

From: Amos Satterlee <asatterlee@inta.org>
To: "'declan@well.com'" <declan@well.com>
Subject: RE: NuSphere replies to Politech post about FSF and Boston
lawsui
         t
Date: Wed, 27 Feb 2002 14:19:19 -0500

Declan:

I can't seem to find anything on NuSphere's original suit, just their
respones to the counter-suit.

The agreement that they (NuSphere) post on their site clearly states:

a. payment UP TO 2.5 million, based on coming to a second agreement.
In fact, they paid the money they said they would in the June 2000
agreement.

b. they were given right to register combination trademarks.

If their expert is correct and Gemini can act as a freestanding
application apart from MySQL, then I tend to agree that it's a stretch
to GPL it -- or are there other issues? It does seem to be a private
spat wrapped up in the flag of Free Software, but that's because I'm
not clearly what NuSphere's original beef was about.

Agreement: http://www.nusphere.com/misc_stuff/mysqlab_agreement.pdf
Expert:
http://www.nusphere.com/misc_stuff/declarationofbrucefwebster.pdf

Amos

***********

From: "Vincent Penquerc'h" <Vincent.Penquerch@artworks.co.uk>
To: mlorion@nusphere.com
Cc: "'declan@well.com'" <declan@well.com>
Subject: RE: NuSphere replies to Politech post about FSF and Boston
lawsuit Date: Wed, 27 Feb 2002 19:15:27 -0000

Hi,

 > NuSphere violated the GPL by simply linking proprietary
 > software to the
 > MySQL system using a public API. MySQL AB is interpreting the
 > GPL so broadly
 > that any commercial software that comes into contact with
 > free software must
 > also become free.  By that standard, a commercial email program
 would > violate the GPL if it downloaded mail from a GPL-compliant >
 mail server.

The two cases you mention are wildly different in scope. In the
first case, the code linking against a GPL library leverages the
library in order to perform some work it could not do at all were it
not linked against it. In the second case, the email program you
mention merely *allows* one to use it alongside a GPLed mail server.
The email program would work without. Associating these two wildly
different cases shows either you don't know the obvious difference
between the two, or that you're trying to get people who don't know
the difference to believe that what you say is true. I hope it's the
former. In the case of linking against a library, the case is very
specifically handled by the LGPL, which permits such linking. The very
existence of the LGPL (created, as the GPL, by the FSF) shows that
this distinction is not a fine one as you seem to imply.

-- 
Vincent Penquerc'h

***********




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