VMware Touts Dismissal of Linux GPL Lawsuit (zdnet.com) 68
"For over a decade, VMware has been accused of illegally using Linux code in its VMware ESX bare-metal virtual machine hypervisor," reports ZDNet, adding that "A German court has dismissed the case, but the struggle may not be over."
VMware stood accused of illegally using Linux code in its flagship VMware ESX bare-metal virtual machine (VM) hypervisor... In 2011, the Software Freedom Conservancy, a non-profit organization that promotes open-source software, discovered that VMware had failed to properly license any Linux or BusyBox, a popular embedded Linux toolkit, source code... In 2015, having exhausted all other means, [Linux kernel developer Christoph] Hellweg and the Software Freedom Conservancy sued VMware in the district court of Hamburg in Germany. Besides the general violation of the GPLv2, "Conservancy and Hellwig specifically assert that VMware has combined copyrighted Linux code, licensed under GPLv2, with their own proprietary code called 'vmkernel' and distributed the entire combined work without providing nor offering complete, corresponding source code for that combined work under terms of the GPLv2."
The German court disagreed in November 2018. Helwig appealed and continued the fight, saying "The lower court dismissed the case as a result of evidentiary rules and likely an incomplete understanding of the documentation of the code in question...." [Monday] VMware rather mysteriously announced: "VMware is pleased with the Feb. 28, 2019 decision of the German appellate court in Hamburg to dismiss Mr. Hellwig's appeal and let stand the regional court's decision to dismiss Mr. Hellwig's lawsuit. "
Karen Sandler, attorney and the Conservancy's executive director, told ZDNet that "We strongly believe that litigation is necessary against willful GPL violators, particularly in cases like VMware where this is strong community consensus that their behavior is wrong. Litigation moves slowly. We will continue to discuss this with Christoph and his lawyers and hope to say more about it in the coming weeks -- after the courts provide their rationale for their decision to the parties (which has not yet occurred)."
Meanwhile, VMware stated that it "continues to be a strong supporter of open source software development," adding that it's been "actively" working on removing vmklinux from vSphere in an upcoming release as part of a multi-year project -- "for reasons unrelated to the litigation."
The German court disagreed in November 2018. Helwig appealed and continued the fight, saying "The lower court dismissed the case as a result of evidentiary rules and likely an incomplete understanding of the documentation of the code in question...." [Monday] VMware rather mysteriously announced: "VMware is pleased with the Feb. 28, 2019 decision of the German appellate court in Hamburg to dismiss Mr. Hellwig's appeal and let stand the regional court's decision to dismiss Mr. Hellwig's lawsuit. "
Karen Sandler, attorney and the Conservancy's executive director, told ZDNet that "We strongly believe that litigation is necessary against willful GPL violators, particularly in cases like VMware where this is strong community consensus that their behavior is wrong. Litigation moves slowly. We will continue to discuss this with Christoph and his lawyers and hope to say more about it in the coming weeks -- after the courts provide their rationale for their decision to the parties (which has not yet occurred)."
Meanwhile, VMware stated that it "continues to be a strong supporter of open source software development," adding that it's been "actively" working on removing vmklinux from vSphere in an upcoming release as part of a multi-year project -- "for reasons unrelated to the litigation."
could be a technicality (Score:5, Insightful)
Re:could be a technicality (Score:4, Informative)
If you understand German, here's a better article at heise.de [heise.de]. The gist is that the case was rejected because Hellwig didn't sufficiently demonstrate that code under his copyright is used in a VMware product. To do this, he would have had to show which parts of the Linux program he had modified in which way, that those modifications meet the requirements for an individual copyright, and that these parts of the code have been copied by VMware.
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this is exactly why the FSF requires that GCC contributions be assigned to the FSF.
turns out the guy with the "genius grant" isn't so dumb, eh.
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How do you know that a guy with a "genius grant" figured this out, as opposed an attorney who was consulted? Hell, even an AC on /. can figure that out.
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No, you're missing the point. The FSF isn't the kernel developers, it's the lawyers. They just exist to sue people in defense of the GPL. They usually do a better job of it than individuals, too.
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One factor that was highlighted in the original lawsuit back when it was filed was that Helwig aimed his complaint at ESXi, based on alleged claims of infringement in ESX. The thing is, ESX was already discontinued and no longer distributed at that point, and the underlying architecture is significantly different between ESX and ESXi.
So basically, it looks like Helwig and his cronies tried to hijack one software, based on an alleged infringement in another software
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One factor that was highlighted in the original lawsuit back when it was filed was that Helwig aimed his complaint at ESXi, based on alleged claims of infringement in ESX. The thing is, ESX was already discontinued and no longer distributed at that point, and the underlying architecture is significantly different between ESX and ESXi
So if I moved to Germany, I'm legally allowed to distribute and copy anyone's copyright protected work that I want to, so long as I label it "discontinued" and am not actively breaking any laws the moment I walk into court?
So I can pirate all of VMwares products, get sued, delay the case as long as possible, and so long as I say my use of vmware is discontinued and I turn the computers off that are using it the day of the court case, I'm in the clear?
That doesn't sound right for some reason, but that would
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It doesn't sound right because it's a straw man of your creation.
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ESX and ESXi are different in packaging, and the management tools. As best I can tell from my direct experience, the underlying hypervisors were nearly identical at the time ESXi was first published.
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As someone who's developed and/or adapted drivers to be compatible with the hypervisors, there were some major architectural differences from the start, and those only grew larger. One major difference was that in ESX, the Linux kernel ran in parallell with the hypervisor, while in ESXi, the Linux kernel runs on top of the hypervisor, which makes a huge difference.
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That is interesting, and a subtlety I was not aware of. I might have been aware 5 years ago: thank you for pointing it out.
It doesn't solve the allegations in the claims by Helwig seem credible. Those allegations describe just the sort of illegal behavior I've personally caught software developers, including kernel developers doing with GPL licensed code and their own proprietary optimization or drivers.
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i give talks at my university about the damage that so called "free software" has done to the industry and they are always PACKED with people.
Yeah, so was your inauguration, pull the other one, Mr. Trump!
Re: open source "free" software (Score:1)
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... i give talks at my university about the damage that so called "free software" has done to the industry and they are always PACKED with people.
As I remember it the Time Cube(TM?) presentations were relatively popular too, ...
Dismissed via willful ignorance (Score:1)
The court dismissed the case because they do not understand the documentation through evidentiary rules. Fantastic. Not even discovery.
Sue again in a more reasonable country. No one should get away with GPL violations just because the judge does not understand the documentation and isn't willing to learn. This would never happen to a large corporation suing for the same reason. Justice should not be limited based on hoe much money one has.
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I don't think they care about freedom at all. They care about control. Whatever originated free software is long gone in place of absolutists who demand control over your work.
Microsoft is contributing to open source. That should tell you how deep this rabbit hole goes.
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If you don't understand the difference between guaranteed freedom (GPL etc.) and free to do what you want with it but possibly take away others' freedom (BSD, MIT, etc.) then you shouldn't even get involved in these discussions.
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Why make things open source and call it "free" and then have a million weird strings attached? It's not free. And it sucks anyway.
Then don't use it! Nobody is forcing you or VMware to use open source software.
People make open source software using their precious time and resources. People use "weird strings attached" licenses like the GNU GPL to prevent people from using their work to jump-start closed source software. People use GNU GPL because they hope that the software they developed might be further enhanced by others, without the risk of the software becoming closed source. What's so "weird" about that?
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You're confused, it's about freedom for the user, the freedom that comes with having the source code.
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There is no such thing as a free lunch. Congratulations on figuring that out. GNU GPL'd software is free to use, but not free to modify, close source, and call your own. That's the contract, which is (will be) upheld by the law.
Re: Not free (Score:4, Insightful)
> GNU GPL'd software is software that has been contributed to the public domain.
Forgive me, please, but _absolutely not_. The phrase "public domain" has very specific meaning with copyrights. The Free Software Foundation does not release software to the public domain precisely to prevent the kind of proprietization and abuse that VMWare is accused of. Please do not misuse the phrase this way, it will confuse someone who's not paid close attention to software copyrights.
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GPL code is copyrighted code and not public domain in any way or form. If it were public domain the GPL wouldn't be needed and couldn't be enforced as the code would be free for all with no limitations attached.
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Nobody controls how you use it. What is controlled is how you licence it if you publish it and what you must publish alongside if you publish it. That is fundamentally different. As long as you just use it in-house, no restrictions apply.
Also, are you saying that all software licenses are invalid because "no elected government voted on them"?
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Gpl license isn't law, it's just a made up set of rules that no elected government voted on. Its not worth the paper it's printed on.
By your logic, neither is MS's license, or Oracle's, or Adobe's. So we can just take those them however we want. Let me know how that works for you.
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More specifically, you don't have to agree to GPL. But if you copy or distribute code without some license from the authors (GPL or otherwise), then you are violating copyright, like any software pirate.
The same is true of MS, Oracle & Adobe. Copying & distributing a work is illegal without some license from the authors granting that permission. Now you have to "click to agree" for MS, Oracle & Adobe because they generally will not grant you a license unless you first agree to surrender other
Lets just be clear: VMware is a software pirate (Score:4, Insightful)
What they do is copyright infringement on a commercial scale and that is a pretty serious crime. When an individual downloads a song (non-commercial infringement), they get hit with the whole book and get stomped in the ground. But when a corporation does it, it seems what happens is ... nothing?
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But when a corporation does it, it seems what happens is ... nothing?
Yep, unless they get sued by a bigger corporation. But every once in a while a little guy can win, just not this time.
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Agreed, steal all major software!
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Calm down. This the Germany we're talking about. Hardly the bastion of corporate protectionism, and a place where no one has yet been "stomped in the ground" for piracy.
Sure (Score:1)
VMware stated that it "continues to be a strong supporter of open source software development,"
Curious how vSphere doesn't run on linux though. You *used* to be able to use it on Linux and is one of the only damn things left keeping me using Windows.