Re: NuSphere final speaks out
Our customers have asked us to comment on the writing by Lorne Cooper in NuSphere's latest newsletter. I will respond to the three primary issues raised in the newsletter: (1) The June 2000 agreement between Progress and MySQL AB; (2) the mysql.org website; and (3) Gemini. For those of you interested in the details, the counterclaim we filed is a public document with the Federal Court of Massachusetts in Boston. The Interim Agreement is an exhibit to the counterclaim. First, NuSphere's president claims that for a large sum of money NuSphere acquired rights to various mysql related trademarks. On 21 June 2000, MySQL AB entered into an agreement with Progress that was an interim agreement only. Under the Interim Agreement, MySQL AB agreed to allow Progress to participate in the GPL announcement of MySQL. We agreed that Progress would be permitted limited use of the MySQL mark and three combination marks (limited to NuSphere MySQL, Enhanced MySQL, and Rocket MySQL) in starting to provide MySQL-related products and services. In exchange for this there would be monthly payments of $104,167 to MySQL AB. NuSphere made three such payments and then stopped paying. (They claim to have purchased permanent rights to 3 specific MySQL-related names for $312,501.) Because we had agreed that the Interim Agreement was intended to serve a short-term purpose only, we further agreed to work toward a final, definitive agreement concerning the business relationship. We at MySQL AB have made every effort to reach a final agreement and we have been patient with NuSphere despite numerous delays in taking matters forward and despite breaches by NuSphere of the Interim Agreement. Now NuSphere has claimed perpetual, exclusive ownership of the combination marks and others. We are confident that the evidence will show that the Interim Agreement did not give either Progress or NuSphere perpetual, exclusive ownership of any MySQL combination marks. This dispute is squarely before a federal court in Massachusetts. Second, NuSphere's president claims that mysql.org is a non-profit initiative. mysql.org is clearly not a non-profit initiative. The domain name mysql.org was registered by NuSphere and the mysql.org website is operated by NuSphere, a subsidiary of Progress, a publicly traded company. NuSphere's operation of the mysql.org website is one example of how they continue to intentionally trade on the MySQL name and goodwill. This has caused actual confusion in the marketplace and injury to MySQL AB. NuSphere continues to operate the mysql.org site for its own commercial purposes. Third, NuSphere's president states that MySQL AB claims that Gemini is a 'derivative work' of MySQL. MySQL AB does not claim that Gemini is a derivative work of MySQL. Rather, we claim that NuSphere has distributed a work based on the MySQL server without making all the underlying source code available, as required by the GPL. NuSphere's violation of the GPL automatically terminated its rights under the GPL. This means that NuSphere no longer can modify or distribute the MySQL server. Please see the Free Software Foundation website for further details on this. We invited NuSphere to settlement talks on neutral soil for as long as it would take. NuSphere responded by claiming they accepted the invitation but actually offered only to meet in a two-hour conference call where they refused to discuss the lawsuit and where no decision-making power of theirs was present. At OSCON they wanted a new meeting, but again they would not discuss the substantive issues and they had no decision maker present. Finally I would like to thank our users for your interest in this case and for the great support we have received and continue to receive. Marten Mickos CEO, MySQL AB (database,sql,query,table) - 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
Re: mysql.org
Dear folks at NuSphere, Thank you for your response to our open invitation. We disagree with a number of your statements, but we look forward to having a phone contact with you on Friday. Marten Mickos (database,sql,query,table) - 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
Re: mysql.org
Guus, Thanks for your good suggestions. Some clarifications below. Guus Leeuw jr. wrote: From: Dipl.-Inf. Guus Leeuw jr. Date: Sun, 15 Jul 2001 03:21:32 +0200 -Original Message- From: Marten Mickos [mailto:[EMAIL PROTECTED]] cut /cut serious Our interpretation is that even under the interim agreement, the operation by NuSphere of mysql.org would have been a trademark violation. Then, Marten, tell us what the status is of the trademark application? Under way, finished, or in the mail as suggested by the other post from Sander Pilon? The MySQL trademark is registered in Sweden and 13 other countries. In the US, the registration has been filed and we are awaiting registration. When we started to use the MySQL mark in the mid-90's it had not been used earlier as far as we can tell. As a side note, this was before the now so popular MyYahoo and MySAP etc. trademarks were taken into use. Monty has told me that he got a lot of criticism for choosing such a silly name. People said it is only toys that carry such names, referring to My Little Pony. And yes, if Britt would agree, you might post documents like the interim agreement and the termination thereof. Of course, this would involve posting the journal of the faxed termination, and a statement from Britt that NuSphere actually received it. Fax communication sometimes don't work... (An aspect sofar not discussed...) I believe it is Lorne Cooper, President of NuSphere that needs to agree. I do not know where the fax thing came from, because the letter referring to the termination was delivered by our lawyers (iIt was the interim agreement from June 2000 that was faxed by David Axmark to Progress). And I would off the top of my head remember that NuSphere responded to it. Marten Mickos CEO MySQL AB - 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
Re: mysql.org
Andy, a clarification below Andy Woolley wrote: I see one HUGE difference between these support sites and .net, in regards to .com: Every one but .net clearly state that this is a product of MySQL AB, tell people about and make very explicit links mysql.com. The impression I get from the .org site, is that they are promoting a product called MySQL, and that MySQL AB (found at mysql.com) is a different product all together. This, is in my opinion is simply not on. I have been using MySQL for many years and I am now wondering if there actually is a difference between MySQL and MySQL AB simply because mysql.org are implying such a fact. Their web site is also giving me the impression that they are responsible for the development of MySQL.I know Nusphere have given both time and money to the development of MySQL but I really don't think it quite justifies building a web site with the intention of deceiving users that may not know the full history of MySQL. NuSphere is not and was not participating in the development of the MySQL server, which always has been in the hands of Monty at MySQL AB. NuSphere's development effort goes into the Gemini component and other software (I hope this is a fair statement, and NuSphere is welcome to comment and elaborate on it). I'm no lawyer but I would say that the content on mysql.org is very misleading and should be changed, pronto. Another thing that concerns me greatly, is that almost every page on mysql.org contains the word free. Too much use of the word free, to me, sends big time warning signals. Kind regards, Andy. Marten Mickos MySQL AB - 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
Re: mysql.org
Justin, I very much agree with your compliment to Jeremy for his posting. Some notes on your posting follow. At 14/07/01 14:03 +0200, Justin wrote: Personally, I could care less about the mysql.org domain issue. I, more or less, see it just as another kind of ex-officio site supporting some Open Source effort. I cannot see why it would lead to confusion as to who is leading the MySQL development, as the information presented on the site makes everything very clear. Yes, now the mysql.org site is much clearer. At the time of our press announcement, the site looked different. The infringement of our trademark in the name of the site has not been cured, however. But, somehow, possession of this domain is important to both of the disputing parties for reasons only known best to them. I think in the long run, to the community, the more sites/domains dedicated to the promotion of MySQL, the better. To be specific: MySQL AB does not oppose the existence of community websites. On the contrary, we encourage them. But we are opposed to violations of our trademark and other rights, to the lack of identification of the people/organisations behind it or affiliated with it , and to anybody requiring registration before allowing downloading of our GPL software. The identification issue has now been fixed on mysql.org, and we are happy about that move, and Britt said in his recent posting that the registration issue has been fixed. We now look forward to seeing the intellectual property issues cured as well. As for NuSphere being perceived as violating the GPL, it appears that they have just not handled it very well in their, er, PR, as, if the NuSphere exposed position is taken on face value, namely they have submitted their changes, but the community has not been really made aware of this because of the complex relationship between NuSphere/MySQL which, also, was not made clear by either party until recently. I would say violating the GPL and submitting their changes are two different things (and maybe you would, too). 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. When it comes to submitting changes there might be more than one discussion threads, and I might not personally be aware of all of them. I'll try to cover those that I believe are relevant and hope I cover what you intended. First thread: In case somebody thinks so, it is NOT possible to cure a GPL violation by submitting source code to MySQL AB. The source code or the written offer has to be in the product that is delivered to customers. Second thread: We at MySQL AB have not refused to accept Gemini source code into the tree, nor have we required transfer of copyright of it to us, or shared copyright (if anybody thought so). Third thread: There was a situation where NuSphere asked us to include in the MySQL server a crypting function that had been developed by a third party (not NuSphere, not MySQL AB). In the absence of shared copyright for us to the piece of code in question, we refused to take it in. This is a principle we have been following always, and it is followed by other open source companies as well, and by the Free Software Foundation (FSF). I hope the above adds clarity. Marten Mickos CEO MySQL AB [EMAIL PROTECTED] - 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
Re: mysql.org
to the topic discussed here now. 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. 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. 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. Marten Mickos CEO MySQL AB - 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
Re: mysql.org
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
