NuSphere says it never violated the GPL

– by Tina Gasperson –
As the hearing to secure a temporary injunction against NuSphere’s
distribution of its MySQL-based products is underway, NuSphere has issued a
response to what it calls false claims by the Free Software Foundation and by
MySQL AB.

Britt Johnston, NuSphere’s CTO, tells NewsForge that his company has never
violated the terms of the GPL, even when its database software was statically
linked to the MySQL code. He says that MySQL itself claims that its core server
is separate from the table handler, in much the same way that NuSphere’s product
is separate from the MySQL code. “We’ve simply created an aggregate work,
connected via a public API, that removes the requirement for
the distribution of source code.” (NuSphere also issued a press release disputing the GPL violation.)

NuSphere is now distributing sources for the various components of its version
of MySQL. “We’ve intended all along to release the source code,” he says. He wants it to be known that NuSphere has donated more than 100,000 lines of code under the GPL, “some of it our intellectual property.”

Johnston is convinced that MySQL AB and the FSF are interpreting the GPL in far
too broad a manner. He says he has had discussions with FSF representatives, and
believes they are being forced to defend the GPL in a manner which they would
prefer not to, because they usually enforce GPL violations confidentially,
outside of the court. Since MySQL is opting not to “forgive” NuSphere’s previous
violation of the GPL (which NuSphere claims it did not commit), FSF has no
choice but to take a stand.

Lorne Cooper, the president of NuSphere, says, “The FSF had no basis on which to
issue” its statement Monday, in which Eben Moglen, chief counsel for the
foundation, said that NuSphere has committed a “garden variety” violation of the
GPL. Johnston agrees and says that the real problem is MySQL AB’s attempts to
get out from under the terms of a contract its officials made with NuSphere in June 2000.

“We are concerned that MySQL could remove MySQL code from under the GPL. When
they signed the contract, they agreed not to do that,” says Johnston. NuSphere has placed a faxed copy of
the agreement online (in .pdf format). In this version, at least, there is
no direct statement that MySQL was required to keep releasing MySQL products
under the GPL.

“We also
retain the right to use the name ‘MySQL,’ including the right to register and
use these marks,” Johnston says. The two companies had also been fighting over
who was the rightful owner of mysql.org. Though it is now registered by MySQL
AB, originally NuSphere had claimed the domain.

NuSphere has also made public an
affidavit filed by IT consultant Bruce
Webster on its behalf. In that document, Webster calls himself a “producer
and consumer of open source software in its myriad forms,” for more than 25 years. He
says that NuSphere merely linked its Gemini product with MySQL, and that doesn’t
make it a derived product. He says that NuSphere did indeed ship the source code
to MySQL and to the “world at large both before and after shipping its various
packages combining MySQL, Gemini, and several other” software packages. Webster
maintains that there was only a brief period of time when the source code was
not available, and he says that was because of problems at MySQL AB, not
NuSphere.

Although some experts in the Open Source/Free Software community, including
Bruce Perens, believe that the temporary injunction against NuSphere will be
granted, there are others who don’t. Linux developer Rick Bradley, in a post to
the Free Software Law discussion list, writes, “The fear I had when I read about this suit (being an open source
proponent for numerous social reasons, though not as strong a proponent
of the GPL in particular) is that by counter-suing NuSphere using the
GPL as a basis [MySQL AB is] forcing a legal test of the GPL. In
a
situation where it’s likely that a test of GPL termination might come
about the GPL looks even shakier than usual.”