FAQ - GPL Case Law? : GPL issue at my work place

Alexander Terekhov alexander.terekhov at gmail.com
Fri Jan 18 19:04:15 UTC 2008

On Jan 18, 2008 7:06 PM, Ernest Prabhakar <ernest.prabhakar at gmail.com> wrote:
> Hi all,
> This is a topic that seems to come up periodically.  Someone care to
> take a stab at writing a FAQ?
> Q: Is there any existing case law covering the GNU General Public
> License?


[GPL contributors can't charge -- no software commerce] "Thus the
GPL propagates from user to user and revision to revision: neither
the original author, nor any creator of a revised or improved
version, may charge for the software or allow any successor to
charge. ... unless a firm with market power can increase its
profits by curtailing output, the practice is lawful under the
Rule of Reason). The GPL and open-source software have nothing to
fear from the antitrust laws."



MySQL's counter-complaint asserting breach of GPL license contract
("COUNT VIII Breach of Contract (GPL License)") and asking for
declaratory (court to declare GPL terminated) and injunctive (court
to preliminary and permanently enjoin Progress/NuSphere from
"copying, modifying, sublicensing, or distributing the MySQL(TM)
Program") relief (plus damages, of course).


"With respect to the General Public License ("GPL"), 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 ¶ 2. After hearing, MySQL seems to have the better argument
here, but the matter is one of fair dispute. Moreover, I am not
persuaded based on this record that the release of the Gemini
source code in July 2001 didn't cure the breach.
In any event, even if MySQL has shown a likelihood of
success on these points, it has not demonstrated that it will
suffer any irreparable harm during the pendency of the suit,
particularly in light of the sworn statement that all source code
for Gemini has been disclosed and the stipulation, given by
Progress during the hearing, that the end use license for
commercial users will be withdrawn. Finally, because the product
line using MySQL is a significant portion of NuSphere's business,
Progress has demonstrated that the balance of harms tips in its
favor regarding the use of the MySQL program under the GPL."

Also kind of related "case law":

(Moot Court Statements of Fact)

(Omega Plaintiff's Brief)

(Alpha Defendant's Brief)

(Hearing and Q&A)

The Scope of "Derivative Works" as Applied to Software: David
Bender of White & Case LLP and author of Computer Law and Ieuan
Mahony of Holland & Knight LLP will argue the proper scope of
"derivative work" under U.S. copyright law when applied to
software, before a panel of distinguished federal appellate

* HONORABLE WILLIAM C. BRYSON, U.S. Court of Appeals for the
Federal Circuit

* HONORABLE HALDANE ROBERT MAYER, U.S. Court of Appeals for the
Federal Circuit

* HONORABLE MARGARET MCKEOWN, U.S. Court of Appeals for the
Ninth Circuit

BTW, there was a whole bunch of remarkable remarks from judges.

Like "what is a license if not a contract", "the real world issue"
of preemption, "intent" is not really helpful, etc. etc.



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