On Sat, Jul 14, 2001 at 07:59:14AM -0700, Michael Collins wrote:
Thank you, Michael, for accidentally posting this. :)
> At 3:10 AM -0400 7/14/01, Britt Johnston wrote:
> >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.
NuSphere has created a public image problem for itself, and
seems to be oblivious to it. I haven't seen the agreement
between NuSphere and MySQL AB. I assume that it was signed
by both parties in good faith. I assume that each party is
astonished at the other party's interpretation of their
agreement.
The contract was signed, if I recall correctly, in Bedford
MA, so the laws of the state of MA will apply. I don't
know anything about business law in MA, but I know that
American common law uses the principle that a contract is
not binding unless both parties provide something of value.
I know what NuSphere was supposed to privide under the contract:
$2.5 million. What MySQL AB was supposed to privide in return
has never been explained. I know that in reality NuSphere
paid ~$350,000. I have no idea what it received in return,
if anything.
However, MySQL AB has made the following claims about the
agreement, and NuSphere hasn't denied the claims:
1) It was an interim agreement.
An interim agreement that gave one party rights to another
party's trademark even after the two parties failed to
negotiate a permanent agreement would be somewhat unusual.
2) The agreement called for NuSphere to pay MySQL AB $2.5
million.
Only slightly over 10% of the money was paid.
Normally, one party cannot enforce the terms of a contract
if they themselves have failed to fulfill its terms.
3) MySQL AB has informed NuSphere that the agreement is
terminated.
NuSphere has not explained why it believes the contract is
still in force.
> >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.
See above. This right isn't clear to anyone except NuSphere.
MySQL AB's right to the trademark is clear to everyone.
> >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.
No, but NuSphere's public statements influence our perception
of the matter. NuSphere has not explained why an interim
contract whose terms NuSphere didn't fulfill is still in force.
(The last sentence describes the perception NuSphere has created.
I have no idea if it describes the reality.)
> >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.
I think mysql.org is dead in the water unless you can persuade
developers that you have a right to the name and the site serves
some useful purpose. Under present circumstances, mysql.org is
doing NuSphere more harm than good.
> >[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.
Gemini's provenence is irrelevant. NuSphere has stated that it has
agreed to distribute
Gemini with MySQL under the GPL. The GPL states that the source code
must be distributed with the product. By your own statements, you are
in technical violation of the GPL. No reasonable person would fault
you for that if there's some reason why you can't provide the source
code immediately, and if you make a good faith effort to provide it
after distribution. NuSphere hasn't stated why delivery of the source
code has been delayed, and still hasn't provided it. At the moment,
the facts that have been presented don't support an accusation more
serious than inept public relations management. But no one understands
why the code hasn't been provided yet, and that isn't
helping NuSphere.
> >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.
And I encourage you to do the same. NuSphere's development efforts and
its support of Paul's writing have earned it a fair amount of credit.
However, NuSphere claims to believe that it has certain rights under
its contract with MySQL AB, but has provided nothing that justifies
that belief. That's not constructive, and it creates an impression
of evasiveness that isn't helping NuSphere.
The audience that you want to persuade is the developers who will
sell NuSphere-based solutions to business users. For a large part
of that audience, MySQL "belongs" to Monty Widenius in a way that
transcends any legal definition of rights. While his claim to have
spent ten hours a day, seven days a week for the last ten years on
MySQL sounds exagerated, there's no question he created MySQL,
devoted ten years to its development, and is commited to the
community of developers that use it.
Many of us are willing to withhold judgement
on NuSphere, but an attitude of withholding judgement is not an
attitude of trust. Most of us weren't involved in the beta
program, we don't know you, and you seem a little evasive.
If you're not discussing specifics because your lawyers have
advised you against it, then you are getting bad advice. You can
win every single battle in court, and still lose the war for
public good will. If you can't persuade the developer community that
you have a legal and moral right to the MySQL trademark, your best
bet is to settle before you do yourself any more harm.
Disclaimer: I'm not a lawyer, I don't know what NuSphere and MySQL
AB thought they were originally agreeing to, and I don't know why
they presently disagree.
> >Britt
> Before posting, please check
> ---------------------------------------------------------------------
> http://www.reality.com/ (the manual)
Dang. Forgot to check the manual.
Bob Hall
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