back to article VMware vs German kernel dev: Filings flung in Linux-lifting lawsuit

Software Freedom Conservancy has spat out a “high level” update on the GPL enforcement case it is backing against VMware, ahead of an expected first hearing next year. SFC said that VMware had filed its defence against the suit brought by German kernel developer Christoph Hellwig back in March, which alleges VMware's …

  1. Alan Brown Silver badge

    Break out the popcorn

    Every single case which has hit german courts has found in favour of the GPL. I don't see it being any different this time.

    It's notable that VMware are trying a slightly different tactic than the thoroughly discredited "Open source == Public domain == non copyrightable" defences that various outfits have tried in the past, but the fact remains that if they didn't write the code in question, they get to use it in ways the author authorises, or not at all.

    German judges are not stupid, even if VMWare seems to think they are.

    1. Yet Another Anonymous coward Silver badge

      Re: Break out the popcorn

      It is going to be a lot less entertaining having the case heard by a judge that understands the facts

    2. Anonymous Coward
      Anonymous Coward

      Re: Break out the popcorn & Stifle Innovation

      @Alan Brown are you seriously saying that the author gets to say how a piece of copyrighted material is used?

      If so, that's like saying that Joseph Heller could tell libraries that they can only lend his book to sane people.

      Author's have a right to be compensated for their works, but they can't dictate use, and they can't stifle innovation just because they don't like it.

      1. whiz

        Re: Break out the popcorn & Stifle Innovation

        Nope the Author does not. However the author is asserting in favour of GPL on what is originally his code.

        Now GPL code allows usage for commercial products as long as its operational functionality is not broken. In this case VmWare seems to have taken an open source code into its Commercial product. Then they made sure it cant be used by anyone else.

        So the question is :

        How can VmWare break functionality of a library which it does not own ?

        @they can't stifle innovation just because they don't like it

        Hilarious the way you imply the author is stifling. Its VmWare thats stifling.

        Oh yes the author can demand GPL spirit be upheld wrt functionality.

  2. ArgBlarg

    Copyright is stong in Germany

    Things like authoral rights are not possible to be rescinded.

    That's why the W40k fan movie never hit the theaters (because authorization needs to be established before, not after - after is too late).

  3. Henry Wertz 1 Gold badge


    First, shame on vmware for trying "you don't have a copyright interest" argument. If you manage to build a kernel with zero of his contributions, then maybe this argument has merit; but you haven't, you are using his copyrighted work, straight up.

    As for license violation? Tricky. The typical "GPL case in Germany" has been companies using GPL'ed software while TOTALLY ignoring the GPL (no acknowedgment of GPL software, no source code for modified software, no link to or wherever for unmodified software.)

    This isn't that clear cut - in this case, there's a proprietary "VMKernel" that is not Linux-derived and is closed-source.. this does all the virtualization, and has some drivers available for it (but nowhere near as many as Linux supports). This VMKernel can load "vmklinux", which is a full (well, stripped down) Linux kernel, used to load Linux driver modules (for disk and network I assume), and there's a few VMWare support modules that this loads to pass data between vmklinux and VMKernel.

    VMWare has full source up for vmklinux and (I think) the support modules. But the argument being made is that VMKernel and vmklinux are basicaly tied together into a single product.

    Personally, I can see why people are unhappy about it, but I do think VMWare's design successfully keeps the VMKernel and vmklinux seperate, with a shim layer in between. The fact that vmklinux is ONLY useful with VMKernel/ESXi is immaterial, plenty of Linux kernel ports are single-purpose. BUT, it is kind of pushing it so I can see how it could be argued the other way too.

    1. yo_G

      Re: Interesting

      I agree, this may actually be interesting. It seems to revolve around what constitutes a derived work. What is the same vs what is separate. Where is the dividing line exactly in the vmware product? Is there one? These are fundamental questions.

      There is an old rms (I think) argument about why the LGPL is necessary: because any time you link code together in the same binary, a derivative work is created. I am not sure this view has any basis in law. My view has always been that this argument is intellectually vapid. Any good programmer knows how to create internal interfaces and keep parts of programs separate, even if they happy to run in the same address space and/or get linked into the same binary. What constitutes a derived work has to be answered with respect to an understanding of what *is* the original work, and, in combination with something else, is its identity preserved? What constitutes incidental mingling but fundamental separation, versus bona fide derivation?

  4. Charles Manning

    GPL enforcement is really difficult

    The teeth in the GPL come from copyright law, thus all prosecutions must come from copyright holders.

    So who are the copyright holders? How much of a contribution must you make to be considered a copyright holder in Linux? That is where things break down.

    Christoph has been prolific, but the question will come up as to whether his contributions are enough to claim sufficient copyright to make a case.

    1. Yet Another Anonymous coward Silver badge

      Re: GPL enforcement is really difficult

      That's the beauty of copyright.

      You have the copyright on every single line of code you write - even after it goes into the kernel.

      So if you misuse it by breaking the GPL, every single author of every single line of code can sue you. In this case vmware are specifically using (allegedly) a module written by this guy

  5. AlbertH

    Abuse of Trust

    The Linux kernel is provided as a boon for the whole world. That a commercial corporation suborns parts of the Linux kernel for pecuniary gain - without crediting the originator of the code - is a breach of the fundamental trust enshrined in the principles of the GPL.

    VM Ware should be suitably ashamed. They should be ashamed to the tune of several million dollars, which could be donated to genuine Open Source projects

    1. John Sanders

      Re: Abuse of Trust

      They need not be ashamed, all VMware needs to do is either stop the copy-pasta from Linux (Good luck with that) or publish the source code and comply with the GPL.

      The shaming will come later once the press finds out the extent of the violation (Tip: massive)

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