My humble response to NuSphere, sent this morning to various and sundry of
their email addresses. Please make your opinions known to NuSphere, it
can't hurt.
****
Dear Sirs:
I believe that your decision to sue MySql AB, the creators of one of the
most popular products to come from the Open Source movement, is ill advised
for you, and the Open Source user community at large.
I think that you will agree that MySql has a substantially larger portion of
'mind share' than Nusphere has at the moment, and that the open source
community will side, by default, with MySql AB. Hence, even if you had a
strong legal case, this lawsuit would be a public relation nightmare for
you.
Furthermore, a cursory review of the facts stated on both sites of the
dispute indicates that you have a very weak case against MySql AB, and the
lawsuit that you have launched appears to be no more than legal black mail
to this impartial observer.
Regardless of the eventual outcome of such a lawsuit, it will drain a large
volume of mental energy and resources from NuSphere and MySql AB, and will
inevitably be brandished by the media at large and the larger closed-source
software players as undeniable proof of the failings of the Open Source
Movement, thus harming your clients as well as ALL members of the Open
Source community at large.
I respectfully request that you immediately cease your reckless course of
action and negotiate with MySql an agreement that is mutually beneficial.
Sincerely,
Philippe Paravicini
Open Source eCommerce Developer
*****
Their official reply:
****
I've included our formal response to our isses with MySQL AB.
Well, what a mess. It is regretable that this legal issue
needs to be aired so publically that was certainly not my
preference. I also will not get into a flame war, it is
not in the best interest of mysql. I appreciate all the
email I've received with advice and/or support - thanks.
It is important that everyone realize that there is a legal
agreement that both Monty and David personally signed that
provides NuSphere broad rights around the use of the MySQL
name. That agreement also allows NuSphere to release MySQL
under the GPL license forever and print and distribute the
manual. We paid significant money to Monty and David in
exchange for that agreement which was central to forming
NuSphere. This is public record.
Please consider these facts when you try to understand
NuSphere's rights and motivations - we actually worked hard
to get the details in writing before we even started the
company and we paid real money. It is under this agreement
that we believe we have a clear right to use mysql.org.
Now it appears there is a need by MySQL AB to characterize
that agreement as no longer in effect - I hope you can respect
the fact that NuSphere believes it is fully in effect and we
wish to continue to abide by it. This is the central issue
and public debate will not resolve it.
As far as mysql.org goes, what NuSphere would like to see is a
non-profit organization running that site - we have been consistent
in this desire for over a year, but it has been opposed by Monty
and David. I discussed this with Monty as recently as a few weeks
ago in June and July and as always he was not interested - I
appreciate he is entitled to that opinion as I am entitled to
believe that it is time to take this step in the MySQL community.
I invite all those who are skeptical to join mysql.org and be part
of its formation.
[BTW, the first community action was to get rid of the registration
requirement at the site - it is no longer required for downloading
files rather it is a membership registration only now.]
As far as NuSphere's contribution to MySQL, it is disappointing to
see our efforts discounted so quickly. At a minimum there are
specific bug fixes, features, and language statements focused
around transaction support in the server that are in MySQL due
to NuSphere's efforts in cooperation with Monty. The Gemini table
handler itself is already part of MySQL and is licensed under the
GPL - go find ha_gemini.cc and you will see it we checked it in long
ago in V4 and again in 3.23 when V4 was late. The Gemini component
itself
will be released via mysql.org as GPL as previously
announced - note that Gemini itself is not a derivative of MySQL in
any way - it's roots date back to long before MySQL existed.
Finally independent of the rest of this. I have the highest respect
for Monty and what he has done creating MySQL. I'm certain we can
move beyond this and make MySQL an even stronger open source project
and I encourage everyone move to a constructive dialog.
****
-----Original Message-----
From: Michael T. Babcock [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, August 15, 2001 10:38 AM
To: MySQL
Subject: Re: NuSphere final speaks out
> trademarks. In May, MySQL AB unilaterally decided the contract was no
longer
> valid, and started proceedings to take away our trademark rights. After
Actually, the rights would belong to MySQL AB unless the contract was
drawn up horribly.
> past June, to give us back the trademark rights we had purchased.
I would also assume that they did not "purchase" the TM rights, but were
given
some form of limited rights to use MySQL AB's rights (which MySQL AB
owns).
> don't have the rights to the trademarks, can't finance the mysql.org
> non-profit organization, and have broken their (GPL) software licensing
The first is probably a fun piece of contract lawyer arguing, but seems
silly enough. Financing mysql.org was considered a problem, AFAICS,
because it didn't clearly point out that it wasn't run by MySQL AB or
acknowledge the latter's ownership of the name.
> First, the contract specifically gives us the rights to the
trademarks
Does anyone know if this contract available for viewing online anywhere?
> Third, MySQL AB claims that Gemini is a "derivative work" of MySQL,
> and thus cannot be sold by NuSphere. Most of Gemini was licensed from
> Progress Software, where it has been in use for over ten years.
So Gemini in its current distribution style would be a derivative work of
Progress' database software and MySQL ... it comes down to how its linked
and the GPL's enforcability.
> If, in some miscarriage of justice, we were to lose the case,
That's not a great way to get judges on your side ... ;-)
> company are not at risk. Our risk is limited to our naming of our
products,
> our method of installing the MySQL portion of our software and some
> relatively small amount of money. You, our customers, have no risk at all.
Which begs the question of how valuable this lawsuit is to NuSphere then.
If all they'll gain is naming rights and an easier distribution of MySQL,
where
is the value?
--
Michael T. Babcock, IANAL
http://www.fibrespeed.net/~mbabcock/
---------------------------------------------------------------------
Before posting, please check:
http://www.mysql.com/manual.php (the manual)
http://lists.mysql.com/ (the list archive)
To request this thread, e-mail <[EMAIL PROTECTED]>
To unsubscribe, e-mail
<[EMAIL PROTECTED]>
Trouble unsubscribing? Try: http://lists.mysql.com/php/unsubscribe.php
---------------------------------------------------------------------
Before posting, please check:
http://www.mysql.com/manual.php (the manual)
http://lists.mysql.com/ (the list archive)
To request this thread, e-mail <[EMAIL PROTECTED]>
To unsubscribe, e-mail <[EMAIL PROTECTED]>
Trouble unsubscribing? Try: http://lists.mysql.com/php/unsubscribe.php
