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By Grant Gross –
There’s a new trademark dispute brewing in the Open Source community, with the founders of the MySQL database project, who operate MySQL.com, claiming MySQL support company NuSphere is trying to confuse users with its new MySQL.org site.
MySQL AB, the Swedish company that owns MySQL, issued a press release today (July 12) saying the MySQL community is “threatened by obscure .org Web site.”
But the souring relationship between former partners MySQL AB and NuSphere, which makes several MySQL commercial products that include proprietary pieces, seems to have as much to do with a licensing disagreement, dueling lawsuits and who controls the MySQL code as it does with MySQL AB’s annoyance over NuSphere’s launch of MySQL.org. (Editor’s note: VA Linux, which owns NewsForge, also has an ownership stake in MySQL AB.)
The dispute could have a larger impact as well: whether the GNU General Public License, at least MySQL AB’s interpretation of it, can stand up in a court of law.
Marten Mickos, the new CEO of MySQL AB, contends that NuSphere is violating the GPL by not GPLing its Gemini MySQL table type product.
“NuSphere is selling a product called NuSphere MySQL Advantage without providing the Gemini part of it as Open Source, although the product is based on the MySQL server under GPL,” Mickos says. “We see this as an obvious breach of the GPL. For a number of reasons, we have terminated our interim agreement with them and asked them to stop using our trademark ‘MySQL.’ “
But officials at NuSphere, makers of several MySQL-based commercial products, say they own the trademarks to NuSphere MySQL and Enhanced MySQL, and they say they plan to GPL Gemini when the MySQL.org site officially launches July 16. The 2.0 version of MySQL Advantage was released April 30.
“That [release] will be our contribution to the MySQL community,” says Judy Mintz, director of marketing for NuSphere. “There’s no licensing of products to argue about, because we’re not licensing their stuff, we’re licensing our stuff.”
NuSphere CTO Britt Johnston contends that the Gemini code is not derived from MySQL, and therefore, it’s NuSphere’s intellectual property, even though the company plans to release its code. “Our NuSphere MySQL Advantage product is an aggregate work, a combination of commercial and Open Source products,” he says. “We’re very supportive of all the Open Source components that are part of it.”
Mickos sees it a different way. Gemini is statically linked to MySQL in the NuSphere MySQL Advantage product, he contends, and section 2 of the GPL requires that code linked so closely to a derivative work also be GPLed. Here’s the text: “When you distribute the same sections as part of a whole which is a work
based on the Program, the distribution of the whole must be on the terms of this License …”
Johnston says at the heart of the issue is a pending lawsuit in which the two companies are suing each other over their changing relationship and trademark issues.
Neither side would talk in great detail about the pending lawsuits, but Johnston says NuSphere hasn’t been allowed to participate in the existing community at MySQL AB’s MySQL.com.
“We tried to submit changes [to the MySQL code] under the GPL to that site, and they were refused on a commercial basis, not on a technical basis,” Johnston adds. “The code works fine, and we ship it as part of our GPL version of MySQL … but they are not available from MySQL.com, because they won’t accept anything they don’t own the copyright to.”
He adds: “In effect, while they use the GPL as the way they distribute their product, they deny other people from contributing.”
MySQL.org is the “natural outcome” of MySQL AB not allowing others to contribute to the code, Johnston contends. “From an Open Source community perspective, which I’m a strong believer in, if it wasn’t NuSphere, someone else would do it,” he says. “When they back away from the Open Source community, someone has to fill the void. If you look at other Open Source communities that have been successful, they all have a very strong community that’s not centrally controlled by one commercial entity. While you can say that’s not been the case with MySQL in the past, that’s dramatically changing.”
MySQL AB’s Mickos, on the phone from Finland, says the MySQL code, while being Open Source, has always been created almost entirely by project founders Michael “Monty” Widenius and David Axmark.
“It has never been a ‘bazaar’ product like in The Cathedral and the Bazaar,” Mickos says. “It’s not a product everybody has contributed to, and that never was the intention.
“Monty has never accepted code contributions from other people,” Mickos adds. “If he has gotten something [from someone else], they have been donations to him, and he rewrites them, but that’s minor. There never has been a situation where anybody could freely contribute code.”
The project founders’ control of the code has never been in doubt, Mickos says, and that control doesn’t violate the spirit of Open Source. “Anybody can see the source, anybody can modify it, but we are not accepting into our version anything that isn’t copyrighted by us. If you want to go out on your own and do a fork, we don’t like it, but you’re free to do it.”
Johnston says the relationship between the two companies has changed over the past couple of months, as MySQL AB has accepted venture capital and brought in a new CEO. He says NuSphere has worked with MySQL AB in good faith, and the company is attempting to change the rules in mid-agreement.
“What we want to do, in launching MySQL.org, is create a non-commercial community around MySQL that we think is essential for its long-term growth and health,” Johnston says.
But Mickos tells a different story, saying NuSphere and MySQL AB had an interim partnership since June 2000, but NuSphere served his company with a lawsuit last month after MySQL AB officials came to Massachusetts to negotiate a more formal partnership. This week, MySQL AB turned around and countersued NuSphere for trademark infringement, breach of contract, and violation of the GPL.
Also last month, NuSphere registered the MySQL.org domain name, and Mickos claims his company wasn’t told. “They claim that our interim agreement is in force, but they’re not informing us of things that relate to MySQL, which is a contradiction,” he says. “We said, ‘Hey, guys, what are you doing? We’re building a partnership and you’re registering a domain name that should be ours’ We said in a letter, ‘You must hand it over to us,’ and they refused.”
Johnston says NuSphere told MySQL AB it would release Gemini under the GPL next Monday, but Mickos says he had “no firm information” that was the case. He adds: “If they do, I really welcome it, because then they are getting away from the violation. But it doesn’t change the fact that they have been violating the GPL for sometime already.”
Johnston says the two companies worked together on a press release about Gemini being part of version 4 of MySQL, but NuSphere is still waiting for that code to be released. “We checked the Gemini code into that source tree, but that source tree hasn’t left the gate yet,” he says. “Now they’ve refused our ability to contribute Gemini at all. So that’s an interesting claim.”
