Report from the NuSphere v. MySQL AB Court Hearing
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:
- likelihood of prevailing on the merits
- immediate and irreparable injury, loss or damage
- 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:
- 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.
- 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.