Judge delays ruling, urges settlement in MySQL suit

A hearing in Boston federal court Wednesday adjourned an hour earlier than expected when District Court Judge Patti B. Saris urged MySQL AB and Progress Software Corp. to reach a settlement instead of having her issue a preliminary injunction in a lawsuit involving the GNU General Public License (GPL).

MySQL alleges that Progress is using its self-titled database software, MySQL, in violation of the GNU GPL, which covers copyright terms under which free and open source software is released. The GPL requires that if a company combines GPL software with software it develops and then distributes, it must release modifications and the new software source code under the GPL. MySQL alleges that Progress' subsidiary company, NuSphere Corp., included a component in its NuSphere MySQL Advantage product, a product built on MySQL's database, that under terms of the GPL should have been released along with its source code, and was not.

MySQL, based in Uppsala, Sweden, also alleges that NuSphere and Progress, both in Bedford, Massachusetts, are infringing on MySQL's trademarks by including the name of its database and company in NuSphere's products. Progress denies wrongdoing on both counts.

MySQL was asking Judge Saris to issue an injunction to bar NuSphere from distributing NuSphere MySQL Advantage, alleging it was in violation of the GPL, and from using the MySQL trademarks.

Saris declined to issue a ruling, however, and urged both sides to attempt to reach a settlement.

"This is not a bad time to work out a business relationship or the end of a business relationship," she said.

Before pushing the parties toward a settlement, the judge previewed a likely outcome of the preliminary injunction if a settlement is not reached. For a preliminary injunction to be granted, she said, the plaintiff must show that it is being done irreparable harm.

On the GPL issue, Saris told MySQL that "I haven't seen the irreparable harm to you and I have seen it to Progress," if its business were shut down.

The judge was leaning against granting the preliminary injunction on the GPL issue for MySQL, though she also said that she was leaning toward granting it on the trademark front for MySQL.

William Ryan, a lawyer with the Baltimore firm Whiteford, Taylor & Preston LLP, argued on MySQL's behalf that "everyday that this goes on, our client's name, our client's goodwill ... is associated with a product that violates the basic premise" under which it was released, the GPL.

For its part, Progress, NuSphere's parent company, argued that it would face irreparable harm to a business it has already spent millions of dollars developing if it is barred from selling MySQL products.

"If we are not permitted to distribute MySQL ... essentially there's no reason for (NuSphere) to exist," said Peter Brown, a lawyer with the firm of Brown, Raysman, Millstein, Felder & Stein LLP.

Executives from both MySQL and Progress were in the courtroom. Part of the judge's desire to reach a settlement stemmed from the presence of the MySQL executives, who had flown in from Scandinavia for the hearing, but plan to return home by the weekend.

Once the case goes to trial, both sides said they expect it will take them no more than six months to complete discovery -- or disclosure to the other side -- of evidence relevant to the case.

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