GPL enforcement goes to court for first time in MySQL case
Lack of Progress
MySQL AB, the originator of the MySQL GPL database, is taking Progress Software Corporation, the corporate parent of NuSphere to court because it continues to distribute a database product that links statically to MySQL's code.
The product was originally released without the accompanying source code. The Free Software Foundation's chief legal counsel, Eben Moglen, is set to provide expert testimony in a hearing Wednesday at 2 p.m. in what is the first court test for Richard Stallman's GNU General Public License.
That's a "garden variety" violation of the GPL, Moglen says.
Additionally, "We don't expect to have any problem enforcing the GPL in this situation," says Bradley Kuhn, FSF's vice president. Normally, he says, the Free Software Foundation conducts private enforcement of GPL violations on software that it holds the copyright on. In this case, MySQL retains the copyright on its GPLed apps, and the FSF is simply providing expert testimony in what is expected to be an easily-gained temporary injunction against the further distribution of NuSphere's version of MySQL.
NewsForge obtained a copy of the 12-page affidavit Moglen filed in advance of his testimony, and in it he says that he thoroughly tested version 2.2 and 2.3.1 of NuSphere MySQL Advantage, the product that uses Gemini in apparent violation of the GPL. He says that 2.2 violates provision No. 3 of the GPL by not providing source code and only promising that it would be released at a later date. But in his review of 2.3.1 he found "the source code was fully available." He states that he was also able to compile the source code into machine readable language, and that the wording about releasing the source at a later date had been removed from the manual.
However, says Kuhn, when NuSphere violated the GPL the first time, it lost its right to redistribute the code in any form, according to provision No. 4 of the GPL. Normally when the FSF privately enforces the GPL, it forgives a company's violation when it corrects the error. However, under the GPL, such forgiveness is not required. MySQL AB has so many other issues with Progress and NuSphere that it is electing to press a case against its adversary.
On June 28, 2000, MySQL AB announced it was GPLing MySQL, an Open Source database that is considered the standard by many. At that time, Progress Software happily announced it was forming a company called NuSphere, which was to be the Open Source arm of its formerly all-proprietary business. Progress said that NuSphere would contribute code and up to $2.5 million to further the "progress" of MySQL.
NuSphere ended up providing $312,501, according to MySQL AB, before a feud that ripped their collaboration apart. According to MySQL, NuSphere simply forked the MySQL project, created the Gemini software and linked it statically to MySQL code, but didn't release Gemini under the GPL. NuSphere also registered the mysql.org domain, a move that some saw as a slap in the face to the originators of MySQL.
For its part, NuSphere says that MySQL has refused to cooperate in the spirit of an agreement they made at the time of the GPLing of MySQL. NuSphere officials say that MySQL AB has refused to accept code changes from NuSphere. Of course, MySQL denies that NuSphere has submitted any code.
NuSphere CTO Britt Johnston was unavailable for comment at press time, but in a NewsForge report in July 2001, Johnston said that NuSphere was releasing a version of Gemini under the GPL. The report also included details about another version of Gemini that the company was keep proprietary.
"NuSphere will continue to offer Enhanced MySQL that contains a commercially licensed version of the Gemini component that is a bundle of performance, support, and maintenance improvements desirable for deployment of commercial applications," he said.
Bruce Perens, founder of the Open Source Initiative, has offered to become a moderator in the case if one is needed. "Moglen will get his injunction," he says.
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