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Virtualization Open Source The Courts Linux

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."
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VMware Touts Dismissal of Linux GPL Lawsuit

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  • by phantomfive ( 622387 ) on Saturday March 09, 2019 @11:39AM (#58242816) Journal
    It might have just been dismissed on a technicality. No point in speculating until the court releases their rationale, especially if you don't know anything about German law (of which I know a grand total of about five sentences worth of knowledge. For example, I know that most if not all of the judges are German).
    • by Anonymous Coward on Saturday March 09, 2019 @12:30PM (#58243008)

      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.

      • by Anonymous Coward

        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.

        • by dfghjk ( 711126 )

          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.

    • by Shinobi ( 19308 )

      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

      • by Anonymous Coward

        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

      • 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.

        • by Shinobi ( 19308 )

          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.

          • 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.

  • by Anonymous Coward

    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.

  • by gweihir ( 88907 ) on Saturday March 09, 2019 @12:47PM (#58243056)

    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?

    • 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.

    • 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.

  • by MrKaos ( 858439 )

    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.

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