VMware's GPL violation case rolls into German court Proceedings have begun in the German case probing whether VMware's ESXi is in violation of the Gnu Public Licence The case emerged last March, when ace kernel developer Christoph Hellwig alleged that ESXi hypervisor has pinched parts of the code he wrote for the Linux kernel. That's a big no-no under version 2 of the GPL. So …
"the Software Freedom Conservancy (SFC), which claimed that the matter had seen its funding pulled and invitations to conferences dry up."
Well, the Linux Foundation isn't a community effort is it? It's a Big Money talking-shop (a trade association) that has actively blocked Karen Sandler (someone who actual gives a damn about freedom) and dropped individual membership (just in case those neck-beard developers who do the actual work demand actual representation).
The organisation that SHOULD be fighting this case, that SHOULD be helping funding, that SHOULD be giving GPL violators a kick in the nuts....is simply rolling over and accepting the money.
Perhaps the developers should form the "Linux Union" and join the Foundation; although that does mean proving financial support to an organisation that doesn't with to actually protect Linux from parasites,
Yes and no. The way copyright law is set-up it cannot fight it as it does not own the copyright.
Helwig (as the holder of the copyright on a large section of the SCSI code) can, Linus can, a few other people can. From there on, the question is who is financing them. Like it or not - GPL and License enforcement in general (some other foundation projects are under Apache or Eclipse) is _NOT_ part of the foundation remit. Now should it be in its remit or not is a different story.
That leaves people like SFC or Free Software Foundation itself to finance Helwig (or another copyright holder) to fight the case.
As far as withdrawing funding, etc - no surprises here. You have not observed Vmware droids in a public conference or forum. If you have watched draft-geneve you will know what I mean.
The Linux Foundation gets paid enough by their members to be able to assist in fighting these battles.
Even if that were not the case, they SHOULD NOT be actively working against those seeking to enforce the GPL, or even speak about GPL enforcement. Which is exactly what the Linux Foundation is doing.
I am sure the fact that VMWare is a donor has no bearing on their non-enforcement stance.
"That leaves people like SFC or Free Software Foundation itself to finance Helwig (or another copyright holder) to fight the case."
FSF have effectively done so in a number of cases, although their preferred method is to have the copyright assigned to them and then drive the case themselves - this keeps a lid on costs.
They have pretty good lawyers, so most cases never hit the courts. Even Welte (gpl-violations.org) has seldom gone to court for his hundreds of sucesses.
Challenging the GPL as invalid makes it a simple copyright violation case and those are a slamdunk, which effectively means any company facing GPL cases is in double jeopardy. In Welte's case it's straightforward because the infringers in question invariably package his standalone software.
This jeopardy is why VMWare are trying to challenge Helwig's assertion of copyright on parts of the kernel. Their strategy is to assert he doesn't have standing, which won't work. If they suceed then the effect would be that the kernel is uncopyrightable and at that point just about everyone would pile into appeal stage. German judges aren't stupid. A lot of USA ones would buy the argument at face value and deny Helwig's standing, which would then mean appeals up to assert that and several years' delay until it got back to a trial itself - at which point he'd be out of money.
"It has already been a dead parrot for years. "
A zombie dead parrot.
If VMWare prevail, that would mean SCO has no case because it would have no copyright standing even if it had authored the tiny code fragments in question, because they're tiny code fragments, not substantive parts.
VMWare is playing a dangerous game. If they managed to prevail the precedents it would set would be such that just about every tech player in existence would be piling in to get it overturned.
As it is, there's more than enough prior caselaw in Germany that they have about as much chance of prevailing as a snowball remaining intact in the inner firey pits of hell. I wouldn't be at all surprised if the judge orders substantial damages to ensure Hellwig's legal costs are settled too. German judges don't like companies playing the game of "The law is not about who's right or wrong, but who has deeper pockets"
"The question here is not, whether Christoph has sufficient copyrightable contributions on Linux as a whole, but for the matter of this legal case it is relevant which of his copyrighted works end up in the disputed product VMware ESXi." [0]
From reading the details it seems like VMware is attempting to claim that Hellwig doesn't own sufficient copyright in the *code VMware have copied from Linux* into their "vmklinux" module, and not using the simple understanding but due to the German legal technical distinction "Bearbeiterurheberecht (loosely translated as modifying/editing authors right)" due to the incremental nature of most kernel code commits over extended periods of time.
As lawyers seem to like to play games with definitions it seems like arguing in the fashion above leaves them implicitly admitting they have copied the Linux code, but Hellwig didn't write/doesn't have copyright of that copied code.
I highly recommend the SFCs detailed technical analysis of the code under the sub-section title "Can you give a specific example, with code, showing how VMware combined Linux source code with their binary-only components?" at [1].
[0] http://laforge.gnumonks.org/blog/20160225-vmware-gpl/
[1] https://sfconservancy.org/copyleft-compliance/vmware-lawsuit-faq.html
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