Suppose IBM is violating the GPL by not GPLing DB2 (AS/400 version). Who has standing to sue?

I believe it is only the copyright holder — i.e., Sun Microsystems — who you hypothesize may have waved that right in a side agreement.

You have a great weekend too.

CAM

The agreement in the code is the agreement. The side agreement that I assume exists, would merely reiterate that IBM’s code is not covered by GPL, in case Stallman and the FSF tried to make a claim that DB2 should be GPLd. I wouldn’t think that such a document would weaken the case of others in this case, but again, I could be wrong.

If someone tried to make that case that DB2 should be GPLd, it would provide quite interesting legal theater.

Have a great weekend,
–Mike

Well, soon I’ll go to the train station and pick up my friend and fellow analyst David Ferris, who’s staying at my house while he attends his son’s graduation. But anyway,

1) The side agreement you hypothesize in connection with Point D, if it exists, actually weakens the whole precedent argument.

2) My point in A was to point out that anything involving a “notwithstanding” is irrelevant for most purposes.

3) My point in C was to point out that DB2 seems to be directly touching something GPLed.

4) The “smoking gun” of Point B is less valuable if it can’t be shown to have shot a hole in the theory that DB2 is infected with the GPL OR WOULD BE ABSENT A SIDE AGREEMENT with Sun.

Best,

CAM

I see I’m not the only one with nothing better to do on a Friday night .

Point A: I was merely pointing out the legal interpretation of specific vs. general in an agreement. The license embedded in the GPLd MySQL is specific. My “Notwithstanding…” was merely a case of taking literary license to concisely illustrate a point. Furthermore, it is not a legal and enforceable precedent, as you point out, but it announces to the world that this sort of thing can be done, they are deemed “compatible”, shooting a hole in the “no way, can’t do that” argument.

Point B: Agreed, if it goes to court and someone points to Sun legal publicly stating that the two are compatible…kind of a smoking gun. I saved a copy for fun.

Point C: Not clear to me what this means in the big picture.

Point D: If this code in MySQL caused DB2 to be deemed GPL, and other versions of DB2 used common modules like the query processor or API, then all DB2 would be GPLd. IBM would NEVER risk this, I would bet anything that they have a side agreement (confidential, unless compelled by a court of law to disclose) stating this same thing. Nobody at IBM would take such a risk otherwise.

Point E: Agreed.

Point F: Hypothetically speaking, operating at arms length, among other things, would strengthen such a legal position.

This is a purely hypothetical discussion. My comments do not reflect any statement of position or direction by ScaleDB, just an interesting analysis of the licensing situation.

Good point. So let’s think this through.

A. If Sun had said “Notwithstanding the GPL, we license IBM to do X”, that would have been their right, but it would not have been much of a useful precedent.

B. That’s not what happened. What actually happened is that Sun Legal is quoted as saying that the arrangement in question did not violate the GPL. That is indeed an interesting precedent if somebody else wants to do something similar.

C. It appears that Sun Legal’s position is that (MySQL + the BSD code provided by IBM) is, as a combined work, GPLed.

D. However, it also appears that Sun Legal’s position is that the GPL on (MySQL + the BSD code provided by IBM) does not infect IBM’s other code with the GPL.

E. Since IBM’s code pre-existed any connection to MySQL, and was used for other purposes, it indeed pretty clearly is independent of MySQL. Most of the products I’m concerned with, however, have only been described or marketed as MySQL storage engines. (Calpont is sort of an exception, but then they haven’t actually shipped any product at all yet.)

F. Notwithstanding the distinction I’m drawing in E, if a storage engine is as “arms-length” to (MySQL + derivative works) as the closed-source part of DB2 is, it would be hard to argue that it would be infected with the GPL.

How am I doing? And how hard would it be for you to make ScaleDB meet the criterion in F?

CAM

ON this link http://bugs.mysql.com/bug.php?id=44172 you’ll see approval by Sun legal of the alternate license, saying it is not in conflict with the GPL license. Apparently, there is a precedent for blessing this “BSD-style” license for components embedded into the core code. Legally speaking, in any agreement the specific outweighs the general. If you say “This code is under GPL”, then in one section you basically say: “Notwithstanding the foregoing, this piece of code is under BSD” then the court will rule that the section in question is BSD, especially with Sun’s written approval. Given IBM’s cautious nature regarding licensing legalities, I’m sure IBM got written assurance from Sun to this effect prior to taking this step. If there were a lawsuit between Sun/Oracle and someone operating under similar conditions, I’m guessing that such an agreement between Sun and IBM would be made available to the defendant under discovery, but I’m not a lawyer.

–Mike