Thomas, thanks for your suggestions. A few clarifications below.
Thomas J Keller wrote:
> Marten Mickos wrote:
> > In response to the posting by Thomas J Keller of Britt Johnston's text, I
> > feel I have to come with the following comments.
> > (The quoted text marked with "> >" is by Britt Johnston)
> > >mysql.org has not been publically announced and it will take
> > >some time for it to become the thriving community it is destined
> > >to be. My hope is that rather than fighting it, you can join it
> > >and be part of an even more vibrant mysql community.
> > We do not oppose communities that form around a common interest in our
> > product. But we do mind if our trademark is used without authorisation. So
> > we are not fighting the community, we are fighting the violations of our
> > rights.
> > Is there any reason for not operating the site under the nusphere.org name
> > or some other name?
>
> Now on this point, in consideration of the assertions of a temporary
agreement
> which MySQL AB asserts to have formally terminated, NuSphere would
appear to be
> violating MySQL AB's trademark. Marten's question regarding another name is
> quite proper. Unless NuSphere can provide solid evidence that there is a
> current formal agreement in force at this time, my opinion (humble, not
huble,
> or otherwise *grin*) is that NuSphere should post-haste transfer
mysql.org to
> MySQL AB. This is a sticky legal point, since both parties would appear
to have
> differing interpretations of the nature, term and status of any agreement
> between them.
Our interpretation is that even under the interim agreement, the operation
by NuSphere of mysql.org would have been a trademark violation.
> > >It is disappointing that our friends from MySQL AB seem threatened
> > >by the creation of noncommercial site to promote mysql that they
> > >jump in and announce it themselves to the world and claim they
> > >were not informed. The facts are they were informed and invited
> > >to participate, their response is what you have read.
> >
> > The last sentence is untrue. MySQL AB was not invited, nor informed of
> > this. The last record we have that relates to mysql.org is from early June
> > when we asked NuSphere to transfer the domain to us, and Lorne Cooper
> > replied that NuSphere refuses to do so. He also noted that NuSphere
had not
> > populated the site.
> > We do not oppose any creation of a concommercial site to promote the MySQL
> > server. But we do mind ... (see my comment above).
>
> Another point where the two parties would appear to have differing
> interpretations of events.
When we learned in June that NuSphere had registered the mysql.org domain
and refused to sign it over to us, we started to routinely attempt to visit
the site. It happened to be me personally who found the populated site on
Monday 9 July. That is the first moment we were aware of the site having
been populated and at no point have we been aware of any -plans- to
populate it.
I would very much want to learn how NuSphere claims we were "informed and
invited" and when that would have happened. We have presented all evidence
we have on this issue, and it would be time for NuSphere to do the
reciprocal. If Britt can fill in on this, please do so.
>
> > >You mention specifically that you believe we have no right to the
> > >domain name. The facts are that we believe we have a right under
> > >an agreement that was signed by both Monty and David that provided
> > >us with broad rights to mysql related names. In fact we paid a
> > >significant sum of money for the ability to use those names and
> > >other items and that same agreement in fact required MySQL
> > >to be released under the GPL. Now that MySQL AB has taken on
> > >venture capital funding and hired new management, they want to
> > >ignore those agreements.
> > There WAS an interim agreement from June 2000 to be replaced within 3
> > months by a final agreement. We have confirmed to NuSphere in writing the
> > termination of the interim agreement. It has not been in force for
some time.
> > For the records, it was only David Axmark who signed it and faxed it to
> > Progress. Progress or NuSphere have never sent us a version with their
> > signatures.
>
> This is in essence the same differing interpretation problem as noted
above.
>
> > When it was in force, the interim agreement did NOT provide NuSphere with
> > broad rights to use the MySQL name.
> > Under the agreement, Progress paid a total of USD 312,501 with the last
> > check being cut in September 2000. See
> > http://www.mysql.com/news/article-75.html for more information on
this.
>
> Well, in the face of radically different interpretations, I see a few
> possible ways to resolve this:
>
> First: take it to court. Potentially expensive, and probably not good for
> public relations for either party.
>
> Second: (and I fully note that there could be any number of valid and
compelling
> reasons for either or both parties to find this suggestion untenable)
post the
> text of the agreement here, for the community to peruse. This suggestion
> carries with it an implicit expectation that the parties would be
expected to
> abide by the opinion of the community (assuming an overwhelming majority
> interpret the agreement one way over another).
I have personally nothing against being as open as possible on these
issues, including posting the interim agreement, and perhaps other
documents as well.
>
> Third: NuSphere could, in the interests of peace within the community,
transfer
> the domain name to MySQL AB, and MySQL AB could back off the GPL
violation issue
> (this presumes that NuSphere brings themselves into compliance with GPL
> immediately). Intent is an important issue here. It is entirely
possible that
> NuSphere understood their procedures to be in compliance with GPL, and that
> MySQL believes them not to be, with both parties acting in good
faith. NuSphere
> can confirm their good faith by accepting that their release is
problematic and
> rectifying the situation immediately. MySQL AB can confirm their good
faith by
> accepting this gesture and relenting on the GPL licensing issue.
>
> > The comment by Britt on vc funding and new management is under the belt in
> > my opinion.
>
> Perhaps.
>
> > >Your comments about us not participating in any meaninful fashion
> > >in the open source community are disappointing because it means
> > >NuSphere has not done a good job communicating its work, I believe
> > >we provide a significant service and have allowed many people who
> > >otherwise could not use open source software to use it because of
> > >our work on improving windows ports, integration of components,
> > >and major features. We contribute back fixes and improvements to
> > >many open source communities including apache, perl, php and mysql.
> > >Much of that work is available at no cost through downloads at our
> > >website. I'd invite you to download and try NuSphere MySQL and
> > >see an example of what we have done.
> > I would hope the discussion could stay away from topics of this sort. We
> > appreciate and respect many things NuSphere, and Britt personally,
have done.
>
> I don't know that we can avoid this, Marten. It seems to be a central
> issue. Certain comments made by MySQL AB supporters have many peiople
believing
> that NuSphere is not a participant in the Open Source community. MySQL
AB is,
> of course, not responsible for statements made by others, but those
statements
> have become a part of the discussion, and the allegations (or
implications) must
> be addressed openly.
OK, I can agree to that, and perhaps I expressed myself unclearly. What I
meant to say was that our allegations are not based on any judgment as to
whether NuSphere is or is not a participant in the open source community.
Also, we do not want to be (and don't think we should be) the judge in that
issue.
>
> > >The importance of our investment is reflected in Monty's own words:
> > >"NuSphere has identified a very important technical enhancement
> > >needed to transform MySQL into an enterprise-enabled database capable
> > >of competing with commercial heavyweights," said Michael "Monty"
> > >Widenius, chief technology officer of MySQL AB. "In MySQL's five-year
> > >history, this is the most significant contribution from a source
> > >outside MySQL AB that has ever occurred."
> > MySQL AB is not trying to devalue the investment in Gemini. But there are
> > people who believe that NuSphere or Progress paid MySQL AB $2.5
million and
> > that NuSphere is somehow part of the MySQL server development team,
none of
> > which is true. Therefore we have communicated that the development of the
> > MySQL server is done by and funded by MySQL AB alone.
>
>
> Well, I have seen nothing that implies an investment of that magnitude in
> MySQL. NuSphere has asserted that they have invested to that magnitude
in the
> development of their products, which are based upon MySQL. If there are
people
> who have misinterpreted that, NuSphere is no more responsible for that
> misinterpretation that MySQL AB is for the assertions made by their
supporters
> regarding NuSphere's level of participation in the Open Source community.
>
The interim agreement states payments (not investment) of up to $2.5
million and the same sum was mentioned in press releases around the time of
MySQL AB going GPL last year. The figure popped up on Thursday in
somebody's posting on Slashdot.
> > >We also support the community by sponsoring and helping organize
> > >events such as the OSCON 2001 with O'Reilly, Open Source Database
> > >Summit with OSDN, and the Linux Legacy through Geek Cruises to name
> > >a few. We are proud of the significant investment we make in these
> > >areas so that the open source community can meet and learn from each
> > >other face to face.
> > This is fine, and nobody wants to take that pride away from NuSphere.
> > However, from our perspective this is not related to the topic discussed
> > here now.
>
> Again, Marten, since many of the participants in this forum clearly believe
> that NuSphere is NOT a participant in the Open Source community, I think
I must
> respectfully disagree with you. This is relevant.
OK, if you think it is relevant, I will respect that.
>
> > >As we said last January, we planned on Gemini being released
> > >under an open source license as part of the launch of MySQL 4.0,
> > >but that release has not shipped so we have decided to release
> > >the source through mysql.org instead soon after its launch (the
> > >community needs to setup CVS to support that effort). Note that
> > >Gemini has both commercial and open source licenses just like
> > >MySQL itself and the products we are currently shipping are
> > >provided with a commercial license of Gemini. We absolutely
> > >believe we have the right to do this.
> > Regarding the GPL violation we state the following: NuSphere is and has
> > been shipping a product that includes the MySQL server under GPL and the
> > Gemini component, with the Gemini component statically linked to the MySQL
> > server. The source code of Gemini or a written offer to provide it is not
> > included in the package, wherefore this constitutes a violation of GPL.
> > It would have been very easy not to violate the GPL by adding the Gemini
> > source to the package. But NuSphere did not do that, and, excuse my
> > language, any explanation is just a bad excuse in my opinion.
>
> I believe I addressed this previously.
>
> > >In closing, I hope you will take a moment to see things from our
> > >perspective and understand that we want a strong mysql community
> > >as strong as apache or php and one that is not controlled by a
> > >single commercial company.
> > We at MySQL AB do not dream of controlling the MySQL community. For
> > instance, we do not require registration by those who download our
> > products. In stead we take every effort to support the community and make
> > superior products available to them. Thereafter it is up to each
individual
> > user to decide what community (or communities) he or she wishes to belong
> > to. I think numbers speak for themselves. There are more than 2 million
> > MySQL users in the world, and that is much more than we have on our
mailing
> > lists or in our customer databases.
>
> Agreed, Marten.
>
> > And finally let us not forget that the community we have today has been
> > built up over many years by not only MySQL AB but by numerous other groups
> > and companies who have silently or officially, and often with no
financing,
> > contributed in many different ways and without violating trademark or
other
> > rights. These heroes should always be remembered when we talk about the
> > success of MySQL.
>
> Absolutely! But let us also ensure that the positive contributions made by
> NuSphere are not demeaned or discounted through ignorance or mistaken
> interpretations.
>
Marten Mickos
CEO
MySQL AB
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