MySQL, Progress talk settlement; injunction issued

U.S. Federal District Judge Patti B. Saris issued a preliminary injunction on the lesser of two issues under consideration late last week, after MySQL AB and Progress Software Corp. failed to come to the out-of-court settlement she urged in their lawsuit. Despite this, however, the companies are continuing to try to reach a settlement.

MySQL had asked the judge to issue a preliminary injunction that would have barred Progress, and its subsidiary NuSphere Corp., from using MySQL's trademarks in their products and from distributing any software that included MySQL's self-titled database program. The case is seen by many as the first test of the GNU General Public License (GPL), the license under which most free and open-source software is distributed.

MySQL is suing Progress because it alleges that Progress failed to include the source code for a software tool NuSphere built and included in its MySQL Advantage package, which included MySQL's database. The terms of the GPL require, among other things, that any software built using components released under the GPL must also include the source code of the new application. If Progress is found to be in violation of the GPL, it could be barred from distributing any software that includes the MySQL database unless MySQL were to grant them a new license.

After attempting to settle the case, the parties notified the judge on Feb. 28 that they would not be able to reach a settlement. Saris issued her ruling the same day.

In the ruling, Saris bars Progress and NuSphere from advertising or selling any products using the MySQL name and from registering or operating any Web sites that include the MySQL name. The ruling does allow Progress to state that its products interoperate with MySQL. The judge gave Progress 45 days to comply with the ruling.

Saris, however, declined to rule on the GPL issue, stating that MySQL had not shown a likelihood of success in the matter or irreparable harm, two prerequisites for the issuance of a preliminary injunction. MySQL seems to have the better argument in the matter, Saris wrote, but said that the release of source code by Progress in July 2001 may have solved the problem. Because of MySQL's central place in NuSphere's product line, barring the company from using the software could substantially hurt NuSphere, she said.

The companies' failure to reach a settlement last week may not signal a move to a trial, however, as the companies are continuing discussions, according to Mark Lorion, marketing manager at NuSphere. Lorion declined further comment, citing an agreement with MySQL, but did say that "things are proceeding very well" and a joint announcement from the companies could be forthcoming.

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Sam Costello

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