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  • From: "Carlos Motta" <cmotta AT stanford.edu>
  • To: <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: cc-licenses Digest, Vol 5, Issue 8
  • Date: Wed, 27 Aug 2003 23:56:45 -0700

FYI

_________

Court Evaluates Meaning of "Derivative Work" in an Open Source License


By Laura A. Majerus

The first court case involving the Gnu Public License (GPL) has been filed
in Federal Court in Massachusetts, and all lawyers who counsel clients on
open source matters should be aware of its existence, even though the case
itself has so far provided little substantive help with open source
interpretation issues. The case, Progress Software Corp. v. MySQL AB, Civil
Action No. 01-11031 PBS, was filed on June 15, 2001. The plaintiff,
Progress, is a U.S. software company that signed an interim agreement with a
small Swedish software company, MySQL, to nonexclusively market the MySQL
software product. The MySQL software had been originally released by MySQL
years earlier under the GPL.

Progress alleged breach of contract, tortious interference with third-party
contracts and relationships, unfair competition and several similar
business-related torts. Progress also sought declaratory judgment as to its
trademark rights and other rights relating to its sale and distribution of
the MySQL software. MySQL filed a counterclaim alleging, among other causes
of action, trademark infringement, breach of the interim agreement between
the parties and breach of the GPL. The interim agreement provided, among
other things, that the MySQL software would be released under the GPL. This
provision conforms to the language of the GPL itself, which specifies that
anyone receiving software under the GPL who then releases it must release it
under the GPL.

In an early release, Progress distributed the MySQL software with additional
proprietary software (Gemini) but did not include the source code for the
Gemini software on its distribution medium. However, Progress did include
the Gemini source code in a later release. MySQL alleged that the
proprietary Gemini software was derivative of the MySQL software because it
linked to the MySQL software. This is a key point because the author of the
GPL has stated that linking to GPL'd software turns the linked software into
a derivative work and that all derivative works of GPL'd software must also
be released under the GPL. Thus, GPL'd software "infects" proprietary
software with which it is linked. The result is that the GPL either bars
inclusion of GPL'd code in programs that are to be kept as proprietary or
forces new programs linking to GPL'd software to be released under the GPL.

On February 28, 2002, the court granted a preliminary injunction enjoining
Progress from, among other things, sublicensing or distributing the MySQL
program and from using the MySQL trademark. Progress Software Corp. v. MySQL
AB, 195 F. Supp. 2d 328, 329 (D. Mass.). The court declined to rule on a
request for summary judgment of the breach of contract under the GPL,
stating:

MySQL has not demonstrated a substantial likelihood of success on the
merits or irreparable harm. Affidavits submitted by the parties' experts
raise a factual dispute concerning whether the Gemini program is a
derivative or an independent and separate work under GPL, [paragraph] 2.
After hearing, MySQL seems to have the better argument here, but the matter
is one of fair dispute. Moreover, I am not persuaded that the release of the
Gemini source code in July 2001 didn't cure the breach.

Thus, the court recognized the important issue that will need to be resolved
in a case interpreting the GPL: whether a program linked to GPL'd software
can be considered a derivative work of that software. The court also raised
the question of whether subsequent shipping of source code can cure a breach
of the GPL without permission to continue shipment from either the author or
subsequent distributor of the software.

An interesting side note is an affidavit submitted by MySQL of Professor
Eben Moglen of Columbia University Law School, who is the lawyer for the
Free Software Foundation, the group that originated the GPL license. This
affidavit contains some insights into the author's intent in drafting the
GPL. In particular, Professor Moglen lists "three primary conditions" of the
GPL, stating that if a company receives software under the GPL and then
distributes it:

1) Redistribution must itself occur under GPL and only GPL, with no
additional license conditions.

2) Redistribution must include "source code," the human-readable form of
computer programs that allows programmers to understand and modify computer
programs for themselves, as opposed to "object code," which is the "machine
language" version of computer programs that is very difficult for
programmers to understand or modify.

3) Redistribution must include a copy of the GPL, so that users are aware
of their rights to use, copy, modify and distribute, and so that anyone
engaged in redistribution is also aware of the conditions under which
redistribution is permitted.

These statements will be useful in future cases where GPL interpretation
is at issue.

Professor Moglen further stated that the Free Software Foundation's position
is that failure to comply with the GPL terminates distribution rights of the
person failing to comply until the copyright holder takes affirmative action
to reinstate the rights. Note that this position requires an affirmative act
by the copyright holder to reinstate the right to distribute, not an act of
the person who distributed the software to the breaching party. In her order
granting partial summary judgment, the judge in the Progress Software
litigation seemed to imply that a breach of the GPL by failure to include
source code possibly could be "cured" by shipping source code in later
versions. This view contradicts that of Professor Moglen.

Professor Moglen's affidavit also reiterates that the GPL is based on
copyright law but reminds us that the GPL requires the author of software to
unilaterally give up certain copyright rights. He suggests that the GPL
actually subtracts from the usual exclusive rights of the author under
copyright law, through the granting of unilateral permissions. Under the
GPL, all persons observing its terms are unilaterally permitted all rights
to use, copy and modify the software. Users who only use the software
themselves or who modify the software only for their own use have no
obligations under the GPL. Only persons who distribute have reciprocal
obligations under the GPL. These include the obligation to release under the
GPL, to include a copy of the GPL and to preserve notices relating to the
GPL. Thus, the author of the software gives up his rights to control the
actions of people who receive the software and do not distribute it, and
these people have a unilateral right to use, copy and modify the software.
Once software is released under the GPL, the releasing party cannot get it
back or halt its use or modification without distribution.

The Progress Software v. MySQL litigation is not over yet. Although the
court refused to grant summary judgment on the issues involving the GPL, it
is still possible that the GPL breach of contract issue may play a part in
the final decision. If this occurs, practitioners may finally have guidance
as to the validity of the GPL under contract law and whether linking
software results in a derivative work.

Carlos Motta
796, Escondido Rd.
Rains 14-A
Stanford, CA
94305-7562 USA
(650) 498.0717
cmotta AT stanford.edu
www.cbeji.com.br
----- Original Message -----
From: <cc-licenses-request AT lists.ibiblio.org>
To: <cc-licenses AT lists.ibiblio.org>
Sent: Wednesday, August 27, 2003 9:01 AM
Subject: cc-licenses Digest, Vol 5, Issue 8


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> When replying, please edit your Subject line so it is more specific
> than "Re: Contents of cc-licenses digest..."
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> Today's Topics:
>
> 1. Ethic Software (Lorenzo De Tomasi)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Wed, 27 Aug 2003 02:23:30 +0200
> From: Lorenzo De Tomasi <detomasi.liste AT libero.it>
> Subject: Ethic Software
> To: <cc-licenses AT lists.ibiblio.org>
> Message-ID: <BB71C6A2.A6DE%detomasi.liste AT libero.it>
> Content-Type: text/plain; charset="US-ASCII"
>
> Look at HESSLA license:
> http://hacktivismo.com/news/modules.php?name=Content&pa=showpage&pid=17
> I think it's a source for new CC license options.
>
> In particular Luca Ferroni (E ferrbsd AT libero.it; W
> http://www.cs.unibo.it/~fferroni/), thinks that the concept od ethic
> software is important.
>
> You can read here what he thinks :)
> http://dragas.dyndns.org/~luca/eng/licenza/swetico.php
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-
> However I noticed that making software available to all people means even
to
> make it usable by people who approve methods that I reject. Those people
do
> not share my vision of the world and moreover use my software against
ideals
> for which I fight everyday.
> So, I thought to propose a license which more or less reflects GPL license
> and meanwhile protects author's moral right.
>
> I propose to limit freedom of code execution for any purpose.
> That is what Free Software calls Freedom 0.
>
> Such limitations I propose, could only involve software execution, not
copy,
> nor modifications, nor distributions, and it must be located within some
> rules to prevent that those limitations hurt people fundamental rights. I
> think it's right to guarantee the author that his time and his knowledge
> aren't applied in actions which not reflect his life style, his beliefs.
> It's time to look around us and consider things for which is necessary and
> is right to fight, things which truly "pay" years of studies and work.
>
> Not in my name.
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-
>
> What about creating an 'Ethic' option for CC licenses?
>
>
> ------------------------------
>
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> End of cc-licenses Digest, Vol 5, Issue 8
> *****************************************

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