GPL enforcement goes to court for first time in MySQL case

– by Tina Gasperson –
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.

(The FSF has issued a press release and a copy of the affidavit.)

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.