A recent court case has raised interest in the legal validity of the GNU general public license, an open-source agreement originated by the Free Software Foundation. While the judge in MySQL AB vs. Progress Software refused to consider the license itself, the case has cast the spotlight on the GPL. "There probably is a case where it could" be challenged someday, Aberdeen Group analyst Bill Claybrook says.

In a ruling issued last week in Boston, U.S. District Court Judge Patti B. Saris prohibited NuSphere Corp., which is owned by Progress Software Corp., from marketing products under the MySQL trademark until the copyright issue is settled in court. However, Saris refused to consider whether NuSphere violated the GPL. The case stems from NuSphere's use of the MySQL open-source database created by Uppsala, Sweden-based MySQL AB, which claimed the defendant infringed upon its trademark by setting up the mysql.org Web site.

In addition, MySQL AB argues that NuSphere failed to pay the full $2.5 million for the right to distribute and support the MySQL database and violated the GPL by failing to release its Gemini transaction storage engine added to the database. NuSphere argues it was only required to pay $312,000 and that it had released Gemini under the GPL, even though it wasn't required to do so since the product did not use MySQL source code. A Free Software Foundation spokesman was unavailable for comment, and NuSphere declined to comment, saying it's negotiating an out-of-court settlement with MySQL. "We're working toward a peaceful resolution," a spokesman says.

Nevertheless, the case has cast the spotlight on the GPL and developers' intellectual property rights. Among the legal questions is whether it can require third parties beyond the licensee to make available under the GPL any modifications to code covered under the license. To date, the Free Software Foundation has settled all GPL disputes privately, but the organization had tried to make the alleged violation in the MySQL case an issue, offering its general counsel, Eben Moglen, as an expert witness.

Analyst Claybrook believes companies have been reluctant to challenge the GPL in court because many companies have a lot invested in GPL-based software. "If it failed as a license, then a lot of companies would have a lot to lose," he says. "It's the old adage: What you don't know, can't hurt you." But that attitude may change as open-source software such as the Linux operating system becomes mainstream. IBM, for example, has invested $1 billion in Linux, and Microsoft has said publicly it's in favor of the open-source model of development but is not a supporter of the GPL. Says Tracy Corbo, a Hurwitz Group analyst, "It's possible the GPL license needs to be reviewed, given the fact that open source has become mainstream."