GPL Tested in Court

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Tim O'Reilly
Feb. 28, 2002 10:02 AM

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I got email this morning from Ed Kelly, who I know from BountyQuest, reporting on the first hearing in the MySQL-NuSphere lawsuit. Ed is one of the smartest IP lawyers I know, and his commentary (reprinted here by permission) gives a nice summary of the issues. Here's Ed (based on notes by his associate, John Palfrey):

As you know, until yesterday the GPL had never been reviewed in court, and there had been some speculation in the academic journals as to whether the GPL would be supported by the courts.

Yesterday, the GPL was examined in court for the first time. In a hearing in Courtroom 13 at the US District Court in Boston, Judge Patti Saris heard arguments in the complex dispute between MySQL and NuSphere/Progress, which centered in no small part on the use of software said to be governed by the GPL.

Judge Saris was surprised at how many people were there to hear the arguments on a motion for a preliminary injunction barring use of the MySQL mark by NuSphere. She noted the almost religious zeal of the open-source community. She also noted that both parties came loaded for bear and that MYSQL had flown in David Axmark from Sweden and both parties had expert witnesses prepared to testify.

I went with John Palfrey, an associate here at Ropes and an affiliate of the Berkman center. John took notes and sent me a write up. Here is a rehash of what John sent me.

Judge Saris stated that the issues presented by the parties at this stage of the litigation were relatively straightforward legal matters that probably could be dealt [with] based on the facts - with some minor clarifications - set out in the earlier submitted briefs. She reminded both parties that the issue that day was whether a preliminary injunction should be granted - not a full discussion of the merits of the case.

At this hearing, Judge Saris was considering whether to grant a preliminary injunction on two issues: NuSphere's use of the MySQL-related trademarks and 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 in court, Judge Saris made clear that she intended to issue a preliminary injunction against NuSphere's use of the marks in question 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. The trademark issue (I filed this Trademark application for MySQL) 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. The harder issue, and the one on which she will almost certainly 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, 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.

All in all it appears that this federal court considers the GPL to be a valid license (which shouldn't be surprising - but it has been an issue from time to time and commented on in the academic literature) with a somewhat ambiguous clause about the obligations that arise when you distribute code that combines GPL code with code that was developed independently.

Tim O'Reilly is the founder and CEO of O'Reilly Media, Inc., thought by many to be the best computer book publisher in the world. In addition to Foo Camps ("Friends of O'Reilly" Camps, which gave rise to the "un-conference" movement), O'Reilly Media also hosts conferences on technology topics, including the Web 2.0 Summit, the Web 2.0 Expo, the O'Reilly Open Source Convention, the Gov 2.0 Summit, and the Gov 2.0 Expo. Tim's blog, the O'Reilly Radar, "watches the alpha geeks" to determine emerging technology trends, and serves as a platform for advocacy about issues of importance to the technical community. Tim's long-term vision for his company is to change the world by spreading the knowledge of innovators. In addition to O'Reilly Media, Tim is a founder of Safari Books Online, a pioneering subscription service for accessing books online, and O'Reilly AlphaTech Ventures, an early-stage venture firm.