[wordup] GPL partially tested ...

[Adam Shand]

For those not in the know the GPL stands for the GNU Public License.  It
is one of the licenses under which Free Software (and sometimes Open
Source software) is distributed.  As a very simplified overview the GPL
grants the end user the right to do whatever they want with the software
(including sell it) so long as any distribution of the software contains
the original source code and any modifications made to it.  

As of yet the license has not been tested in court, this is the first
time it almost has been.

Adam.

From: http://www.newsforge.com/article.pl?sid=02/02/27/2356205

GPL probably safe for now; Moglen doesn't testify
Wednesday February 27, 06:49 PM EST
by Adam Kessel

An observer at the hearing for a temporary injunction against NuSphere
says the judge had pretty much made up her mind before entering the
court room. The following is a post to the Free Software Law discussion
list, made by Adam Kessel and reprinted here with his permission.
Hi All:

I just returned from the hearing for a preliminary injunction on the
NuSphere/MySQL case. Here are some initial reactions, many of which are
not original to me.

First, the headline: There was nothing to suggest that the GPL itself or
free software is in danger, although the judge is unlikely to rule in
MySQL's favor on this preliminary injunction.

The details: Judge Saris was surprised by the number of people attending
the hearing (around 20 to 30). I suspect she didn't know this was being
seen as the first test case of the GPL in court. She threw both sides
off balance by announcing, before any arguments, that she had more or
less made up her mind.

She said she was inclined to grant the defendant's (MySQL AB) motion for
a preliminary injunction with respect to the trademark issue (enjoining
NuSphere from using MySQL's registered trademark against MySQL's wishes
after their "temporary agreement" broke down) but was not inclined to
grant the preliminary injunction against NuSphere from using the GPL'ed
code at all. There followed about two hours of arguments, and when the
Judge adjourned the hearing it seems she held the same views.

The judge did not want to get into issues of fact beyond their most
minimally necessary. Although her technical knowledge was limited, she
realized that it could take several hours and probably several days to
fully explore the technical side of things, and she wanted to make her
decision today after this hearing, particularly since people had
traveled great distances to attend the hearing (including the two MySQL
AB developers from Sweden).

Like most judges, Judge Saris was hoping this could be settled between
the parties, particularly since the Court is not particularly well
equipped to deal with the more technical issues of 'statically and
dynamically linked code', etc. She urged the parties to use the
remainder of their time in the courtroom to talk, and was trying to set
up some mediation with a professional mediator or magistrate judge. One
analysis is that she will grant one motion but not the other so as not
to put either party in too powerful a position in an out-of-court
settlement.

Although the court clearly didn't understand the specifics of open
source (she seemed to think "linking" code was analogous to hyperlinks
on the web, and that a single package was like a single icon you would
click on on the desktop), she did pretty clearly understand what the GPL
is about, and said nothing to suggest she didn't think it would be
enforceable. The issue at hand was whether the facts required immediate
injunctive relief. For preliminary injunctive relief, the Judge looks
at:

(1) likelihood of prevailing on the merits
(2) immediate and irreparable injury, loss or damage
(3) balance of harm to moving party vs. harm to non-moving party lies in
moving party favor

It seemed like she might be convinced on (1), but she had trouble seeing
how (2) was the case, so she was not particularly interested in hearing
a lot of argument about whether or not the case would eventually prevail
on the merits. She also was concerned that the injunction from using
MySQL code at all would essentially destroy NuSphere's entire business
(despite the fact that they are a subsidiary of a $300M company), and
thus found it hard to believe that the balance of harms would lie in
MySQL AB's favor.

It is thus likely that she will not actually address the terms of the
GPL itself in her decision, which is a good thing, since there was so
little expert testimony about it (Eben Moglen was present but was not
given a chance to testify). Instead, I expect she will focus on the lack
of proof of irreparable harm in a short opinion denying the motion.

The trademark issue was more clear cut. Under copyright law,
non-permitted use of a trademark is presumptively irreparable harm.
MySQL AB and NuSphere had previously had a provisionaly contract
granting NuSphere the right to use MySQL's trademark; however, the court
found it convincing that that contract terminated (1) because it had a
horizon date, after which further arrangements would need to be made,
and (2) because NuSphere ceased making payments to MySQL AB. NuSphere
wanted to argue that MySQL AB should be stopped from the claim because
they took 18 months to bring suit about it (therefore, in NuSphere's
view, "acquiescing" to the continuation of the contract) but MySQL AB
was in good faith negotiations for most of that time; once things did
break down and MySQL AB learned that NuSphere had distributed MySQL
along with proprietary software, then they did file suit fairly
promptly.

I'd be happy to answer any questions about the proceedings for those who
couldn't make it.

A couple of thoughts:

(1) NuSphere probably figured they could probably violate the GPL and
MySQL would not have the resources to sue them. This is probably true of
most free software developers who have not assigned their copyrights to
the FSF. After watching this hearing, it seems to me imperative that
developers assign their copyrights to some party that will have the
resources to enforce it (whether the FSF or some other organization).
These violations can only become more common as GPL software becomes
more powerful and widespread, and it is quite expensive to litigate
against them.

(2) The GPL termination clause (section 4) is going to cause problems.
Does the person who violates the GPL permanently lose their license
until the licenser re-grants it, even if they bring their use back into
compliance with the GPL? Can they not redownload the GPL'ed software and
become a 'fresh' licensee? What if the original licenser can't be
located? Does this mean there is a "special class" of people in the
world who can't distribute GPL software for the rest of their lives
because of some past action that has been cured? How are courts likely
to view this interpretation? Is it good policy? These issues were quite
present because it appears that NuSphere has substantially cured their
prior violation (although there was a dispute of fact over whether they
actually had fully cured it).

That's it for now. The parties were given until August for discovery,
although the judge urged them again to settle before that. It appears
that a preliminary injunction against NuSphere to stop them from using
the trademark (they will probably change the software name to something
like "NuSphere Enhanced for MySQL") will likely give them something on
the order of three months to implement.