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Copyleft does not have its day in court

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ComputerWire: IT Industry Intelligence

Attempts by the Free Software Foundation to turn NuSphere Corp and MySQL AB's contract dispute into a legal test case for the GNU general public license (GPL) seem to have fallen at the first hurdle as the judge hearing the case declined to consider technical arguments.

While the GPL is widely recognized as a binding agreement between developers, it has not yet been tested in a court of law. The chances of MySQL AB and NuSphere's contract wrangling being expanded in order to prove the legitimacy of the GPL look slim as Boston, Massachusetts US District Court Judge Patti Saris refused to allow arguments to expand beyond the trademark dispute.

The original court case came about after a disagreement between Bedford, Massachusetts-based NuSphere (owned by Progress Software Corp) and Uppsala, Sweden-based MySQL AB, original creators of the MySQL open source database.

NuSphere licensed the rights to distribute and support the MySQL database and agreed to make payments of "up to $2.5m" under a June 2000 agreement that also marked the first release of MySQL under the GPL.

However, NuSphere angered MySQL AB when it set up the mysql.org community web site. MySQL AB sued NuSphere for trademark infringement and further claimed it had only received just over $312,000 from NuSphere. It also asserted that NuSphere had infringed the GPL by not releasing its Gemini transactional storage engine addition to MySQL under the GPL.

NuSphere denies this allegation, arguing that it has released the Gemini technology under the GPL, even though it was not required to do so as Gemini is not actually a derivative of the MySQL program itself.

NuSphere has also made available on its web site a copy of the original agreement between the two companies, which indicates that payments in addition to the $312,000 were subject to further agreements being made between the two.

According to reports, Judge Saris announced before arguments had even begun that she had more or less made up her mind and was inclined to grant MySQL AB's motion for a preliminary injunction with respect to the trademark issue, but was not inclined to grant the preliminary injunction against NuSphere from using the MySQL code.

Although no motion was formally granted, Judge Saris urged both parties to come to an out-of-court settlement. It appears that the judge agreed with MySQL AB's assertion that its original agreement had ended, and as such, NuSphere's continued use of the MySQL trademark was an infringement.

The Free Software Foundation (FSF) entered the fray on Tuesday when it released a statement that Progress/NuSphere had lost the right to distribute MySQL due to an infringement of the GPL and that Gemini was linked statically with the MySQL database to form a single binary program. It also stated that it was going to assist MySQL AB in its enforcement action.

While the FSF, the originator of the GPL, has previously managed to address GPL disputes outside the courtroom, it is in many ways in its best interests to prove the legitimacy of the license.

There are several doubts about the legal validity of the GPL - in particular its "copyleft" approach, which obligates anyone who modifies GPL-based code (and distributes this -ed) to make the modifications available under the GPL. This obligation is extended not just to the original licensee, but also to any third party who uses or modifies the code.

One of the issues is whether the GPL is a form of copyright (which assigns to the creator intellectual property rights) or, as software licenses are generally considered to be, a contract (which may give permissions to third parties, but not obligations).

The FSF states that 'copylefting' is the method of copyrighting a program and then adding distribution terms, which give everyone the right to use, modify and distribute the code so long as the distribution terms are unchanged.

This means that a developer who modifies GPLed code owns the rights to their modifications, but is forced to make them available under the GPL. Whether or not the GPL can be legally used to force a developer to make their intellectual property available under the GPL is open to question.

It seems the FSF will have to take a judicial enforcement route at some stage if it is to prove the legitimacy of the GPL, but it doesn't look like it will be getting a chance with NuSphere versus MySQL AB.

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