Linux Developer Loses GPL Suit Against VMware (itwire.com)

An anonymous Slashdot reader quotes ITWire: Linux kernel developer Christoph Hellwig has lost his case against virtualisation company VMware, which he had sued in March 2015 for violation of version 2 of the GNU General Public Licence... The case claimed that VMware had been using Hellwig's code right from 2007 and not releasing source code as required. The Linux kernel, which is released under the GNU GPL version 2, stipulates that anyone who distributes it has to provide source code for the same...

In its ruling, the court said that Hellwig had failed to prove which specific lines of code VMware had used, from among those over which he claimed ownership.
In a statement, Hellwig said he plans to appeal, adding that "The ruling concerned German evidence law; the Court did not rule on the merits of the case, i.e. the question whether or not VMware has to license the kernel of its product vSphere ESXi 5.5.0 under the terms of the GNU General Public License, version 2." The Software Freedom Conservancy has described the lawsuit as "the regretful but necessary next step in both Hellwig and Conservancy's ongoing effort to convince VMware to comply properly with the terms of the GPLv2, the license of Linux and many other Open Source and Free Software included in VMware's ESXi products."

Comments

Verdict sound legitimate

[hcs_$reboot]

Since "Hellwig had failed to prove which specific lines of code VMware had used", the verdict doesn't sound unfair.

Re: Verdict sound legitimate

[Luthair]

Obviously I'm not a lawyer but what about discovery? Shouldn't he have to opportunity to to grep their source code repository?

Re:Verdict sound legitimate

[Anonymous Coward]

Well AFAIK the vmkernel is 100% built within VMware. Also IIRC there is some layer allows it to use open source drivers for hardware. There's also the Service console which was a privileged VM to allow for some admin tools. This used to be Redhat Enterprise Linux and now it's BusyBox based. Smaller footprint for ESXi but not completely gone.

Anyways I'm still not clear on what he thinks they did wrong. AFAIK VMware hasn't done anything that's not above board here.

Re:Verdict sound legitimate

[bloodhawk]

If you can't prove you have a case against someone sounds like a pretty fair reason for it to be thrown out. All for screwing over companies that misuse other peoples licenses (commercial or OS) but the onus has to be on those filing the case to prove it.

Re: Verdict sound legitimate

[zwarte piet]

why would they? Nobody can be forced to cooperate with their own procecution.

Re: Verdict sound legitimate

[Intron]

So thieves don't have to give back stolen goods, because that would be cooperating. Interesting legal theory.

Re:Verdict sound legitimate

[sexconker]

You wouldn't really even need a debugger. Just binary code built to the same target. If you can find long enough nuggets that match, baby you've got a stew goin'. From there you can trace back to your own code's source and make sure it's not some trivial shit that everyone writes the same way (or the compiler rewrites the same way).

Re: Verdict sound legitimate

[bloodhawk]

Straw Man. you have to prove they were stolen goods. A thief that just happens to also have a item of the same manufacturer is not a thief and does not need to return the item unless it can be shown it is not his.

Re:Verdict sound legitimate

[whoever57]

You missed the point that the court would not allow Hellwig's expert's evidence. Perhaps it wasn't a case that Hellwig didn't have evidence, but instead that the court wouldn't listen to the evidence.

Re:Verdict sound legitimate

[phantomfive]

My understanding was that the experts said, "The code was copied, anyone can see which code was copied by looking at place A, B, C."
But that isn't how copyright cases work in the German courts. In the German court, you have to say, "here are Exhibits A, B, and C, these are the lines of code that VMWare copied."

So they need to follow the proper procedures in court. Usually a lawyer should help with that, but maybe this kind of copyright case isn't very common?

Re: Verdict sound legitimate

[Bite The Pillow]

Where was this tried, and how much experience do you have with that legal system?

I have none, and it sounds like you have experience with that if a different country.

It might be better to state your bias, and ask if the jurisdiction has similar concepts. Otherwise it sounds like the old adage, "A little knowledge is a dangerous thing."

Re:Verdict sound legitimate

[Anonymous Coward]

Actually, the ruling is not related to source code that is withheld by VMWare. Hellwig did not sufficiently specify what parts of vmklinux (a vmware module clearly based on linux) he personally claims copyright to.

For example, on the CD-ROM he created was a git blame of the linux source and also a diff between linux and vmklinux. In Germany it is not the job of the Judge to combine these 2 bits of information and Hellwig (or his counsel) should have done that. According to this ruling at least (or more specifically my interpretation of it, and I can't even read the German version).

Re: Verdict sound legitimate

[Antique Geekmeister]

He'd have to convince the court that there was enough likelihood of infringement to issue a subpoena. That is more difficult when you have little to no budget and there may be other, legal ways to write the same software. It's a cpoyright infringement, not a patent infringement, so the code would have to be substantively identical.

Even companies _claiming_ infringement of their software have been very reluctant to show their source code in court. One understandable fear is that it will be copied and spread and lose trade secrets. Another is that it may convince people that they are lyin gthieves, That seems to be what happened when SCO tried to sue various Linux users infringing SCO's licenses for \UNIX source code, While SCO turned out to be mistaken in claiming ownership of SysV UNIX, which still resided with Novell, they were never compelled in court to show the full set of source code they were claiming was infringed.

The lawsuits from SCO were ridiculous, but stretched on for years. I hope this judge pays attention to that lawsuit in exactly how _not_ to handle a software copyright case.

Re: Verdict sound legitimate

[gavron]

Discovery is part of the US legal system (see US Federal Rules of Civil Procedure 26).
The German system is different.

E
FD: IANAL. I have done expert testimony.

Re: Verdict sound legitimate

[buchanmilne]

Also IIRC there is some layer allows it to use open source drivers for hardware. ...

Anyways I'm still not clear on what he thinks they did wrong. AFAIK VMware hasn't done anything that's not above board here.

Really, you missed the part where they copied GPL drivers into a proprietary kernel? How would that not be wrong?

As far as I know, VMWare has admitted to copying Linux drivers, but they claimed that their kernel "wrapped" the Linux kernel in such a way as to not infringe. This claim alone should be sufficient for discovery.

(Apologies in advance for any formattung issues, still no preview on the mobile interface.)

Re: Verdict sound legitimate

[phantomfive]

why would they? Nobody can be forced to cooperate with their own procecution.

Because that's how discovery works lol Check it out and become educated

Re: Verdict sound legitimate

[Anonymous Coward]

According to /., if Hellwig still has the source code, then it has not been stolen, right? How is this any different than pirating music?

Re: Verdict sound legitimate

[aberglas]

Nobody really knows what GPL even means.

It does not define how closely linked code needs to be in order to be one work. Interpretations are very much C/C++ oriented, the meaning in Java/.Net etc. is even more obscure.

Why is there a problem using drivers in a kernal, and not a problem running any non-GPL code on Linux? It aint explicitly in the license. And that is deliberate, because it is designed to be a lose as possible.

The one thing it does do is allow Gnu/Linux to take code from the BSD project without ever giving anything back. The reason that OpenSSL was successful is that its license specifically precludes relicensing as GPL.

Re: Verdict sound legitimate

[bloodhawk]

hey I wasn't the one that came up with the stupid analogy, just responding to a blatantly incorrect statement.

Re: Verdict sound legitimate

[Anonymous Coward]

Really, you missed the part where they copied GPL drivers into a proprietary kernel? How would that not be wrong?

The GPL depends on the term "derived work". If the vmware kernel can load various types of modules and the GPL'ed modules are all optional it might not be considered derived. NVIDIA has used the inverse of this for years for its binary driver, the blob itself is mostly independent of the kernel and comes with a thin compatibility layer.

Also it seems that the developer failed to show that a copy even happened, having all his "evidence" dismissed on behalve of the defense. Why even ask the Conservancy for help? As far as I can tell they have funding issues and their success history includes a single default judgement.

Re: Verdict sound legitimate

[silentcoder]

Even if your claim is true - this is about a piece of code written in C - so by your own claim it's pretty unambiguous.

Re: Verdict sound legitimate

[Anonymous Coward]

Why is there a problem using drivers in a kernal, and not a problem running any non-GPL code on Linux? It aint explicitly in the license. And that is deliberate, because it is designed to be a lose as possible.

From the horse's mouth, although some might call him an ass instead ;-)
http://yarchive.net/comp/linux...

Re: Verdict sound legitimate

[AK Marc]

If the item is confiscated by the police and re-distributed, that's not "giving back" anything. When you use an invalid analogy, it doesn't work. Hans Reiser didn't have to cooperate with his prosecution by producing his murdered wife. Though, after being convicted of murder, he produced the body, in exchange for a reduced charge/sentence.

Re: Verdict sound legitimate

[Anonymous Coward]

Why is it unambiguous?

There is no clear distinction between compile time linking or runtime linking. Both are done before running the application and the distinction between disk and RAM storage have been vague ever since the first ram/rom based filesystem.
A program is just a function that is called. There is no real difference between a separate program and a function specifically written as part of a program.
You can claim that it is a separate program because it is distributed separately from the operating system, but what does that mean for a rar-split?
You can claim that it is a separate program because it is copied from one type of memory to another at different times, but what does that mean for programs that loads part of its code at runtime or for rom-based software?

There is nothing with C that makes the code compiled from it distinct from interpreted languages or bytecode. Code that is compiled to x86 machine code can still be treated as bytecode and executed in an emulated environment.
There is no real difference between static or dynamic linking. The system you run it on can decide to cache the dynamic linking and then it becomes static linking.

GPL relies on conventions that are based on current technology. A simple thing like compiling and distributing the GPL code separately and connecting it to non-GPL code through scripts quickly puts it in a situation where either GPL code can be used freely together with non-GPL software or where it can't be used at all simply because it is running on a system with a non-GPL BIOS or on a CPU with non-GPL microcode.

Re: Verdict sound legitimate

[CSMoran]

for whoever wants to peak at a companies source code.

Sounds like a weird fetish, even in this community.

Re: Verdict sound legitimate

[Anonymous Coward]

This is actually the exact opposite of what he wants them to do, take a moment to breathe and actually read the summary. He wants them to RELEASE the source code as per the license agreement. He's not saying that they owe him money, but rather that they owe the public the source.

Re: Verdict sound legitimate

[Megol]

Of course not*. But they can be forced to produce artifacts of interest for the case. Which in this case would be source code.

(* ironic - yes people can be forced to cooperate even in the US)

Re:Verdict sound legitimate

[jellomizer]

Not necessarily. You will need to show the limitation in your mainline kernel that would require VMWare to write a change to it.
VMware could just be using the standard kernel, and just made a customized distribution with their own priority code as the key running component.

The source for the kernel is widely available. But the VMWare product isn't.

To be fare. VMWare has its software designed to run on Different OS's and Linux Distributions so the ESXi version may just be a normal port with a boing LInux running in the backend.
 

Re: Verdict sound legitimate

[jellomizer]

"Nobody really knows what GPL even means." The GPL is treated more like a religion. Where people get all up in arms, when it isn't used the way they wanted it to be used.
The GPL is rather strict, however there are loopholes, some that the GPL 3 closed (for better or for worse) So VMWare may be following the letter of the GPL but not the Spirit.

Re: Verdict sound legitimate

[mrchaotica]

Nobody really knows what GPL even means.

It does not define how closely linked code needs to be in order to be one work. Interpretations are very much C/C++ oriented, the meaning in Java/.Net etc. is even more obscure.

Bullshit. The GPL is built on copyright law, which means "derivative work" mean the same thing in relation to the GPL as it does everywhere else. It is a legal definition, not a technical one.

In other words, the manner in which the compiler/interpreter links the proprietary code to the GPL'd code is entirely irrelevant: if the proprietary code is "based on" the GPL'd code, it's infringing. That even includes just reading the GPL'd code on GitHub and reimplementing it!

Re: Verdict sound legitimate

[angel'o'sphere]

Obviously I'm not a lawyer but what about discovery? Shouldn't he have to opportunity to to grep their source code repository?
Obviously not. On what legal base should he have the right to grep anyone's source repository?

Re: Verdict sound legitimate

[mark-t]

Assuming his copyright was violated, what *has* been "stolen" are his rights to exclusively control who may copy his content. Exclusive, by definition, means that nobody else is doing it,. so by infringing on his copyright, they are genuinely depriving him of some of the rights that he had as the copyright holder. Since the work was under the GPL: copy being under his control would entail that everyone has access to his code and all derivatives of it. If someone deprives him of this right of control, then they are preventing people from accessing his code, which if it had been under his control would not be the case.

Even if you want to allege that theft requires depriving the victim of whatever is stolen, a not entirely unreasonable argument can be made that copyright infringement is actual theft. It's just not the case that what the thief is gaining from the theft is the same thing as what the copyright holder loses.

One may argue that intangible things cannot be stolen, but that is ultimately an arbitrary distinction, since the tangibility of something does not necessarily correlate with how much it may be considered to be worth.

Re: Verdict sound legitimate

[UnknownSoldier]

> As far as I know, VMWare has admitted to copying Linux drivers, but they claimed that their kernel "wrapped" the Linux kernel in such a way as to not infringe.

Netflix on the PS3 does a similar thing by providing their own "shim" to call GPL code . Sony's lawyers had a field day trying to determine if Netflix could do this -- their answer was grudgingly yes, since they weren't technically violating the GPL.

It was kind of an interesting run-around / "hack" when you think about it.

Re: Verdict sound legitimate

[HiThere]

Or they could even be following the spirit of the GPL...version 2. IIRC it was originally asserted that it was ok to use dynamic linking, but not static linking. If so, VMWare could be wrapping the drivers in a way quite compatible with the intent of GPLv2...but you'd need to see the code to know.

Re: Verdict sound legitimate

[jellomizer]

Well the spirit was to have all your code released under GPL as well. The dynamic linking rule was more targeted towards being able to link things because you can't have it GPL. vs VMWare where they won't have it GPL.

Re: Verdict sound legitimate

[afgam28]

It's common, at least in the US, for internal emails to be used as evidence in court. Some well publicized cases from the top of my head are the recent Oracle vs Google case and the Microsoft antitrust case. I don't know why source code would be treated differently.

Re: Verdict sound legitimate

[Coren22]

Frankly if you follow that logic, we should all move back to Africa, as that is where the whole race originated.

Re: Verdict sound legitimate

[stoatwblr]

The thing about GPL is that it's a License - if you don't comply with it, then it's a simple copyright violation case.

It's also easy to comply with (open your source)

The vast majority of GPL cases have never hit court because it's been far more blatant cases (such as stealing busybox) and once the respondent's lawyers realised that if they argued the GPL wasn't enforceable, they'd then be fighting a copyright violation case - which in most cases would be open and shut with larger penalties because they'd already admitted using the code.

This case is more subtle and from the look of it the courts haven't allowed sufficient discovery to be done. VMware probably learned lessons from Fortinet being taken down over its "proprietary operating system" fiasco.

This will go to appeal and I doubt the higher courts will rule against discovery.

The merits of the case....

[Daemonik]

"You see, the court did indeed rule that I had no evidence my door had been broken and something was missing from my home, but do not let that distract you from the fact I have been robbed!"

Re:Sorry to all Germans and Pooftahs

[Anonymous Coward]

1) "America" isn't doing anything. A few individual Americans are doing well in the Olympics, however that doesn't reflect anything about you or any other American who isn't participating in the Olympics. Like an idiotic sports fan, you are conflating someone else's ability with your own.
2) Nobody gives a shit about the Olympics any more, not even Americans.

Re: Wrong again

[Anonymous Coward]

Wat? Using GPLed source code is an implicit agreement to the license.

Re:Wrong again

[iCEBaLM]

The only thing that grants VMware the permission to use and redistribute linux code is the GPL, if they don't agree to it, then they can't use any of it.

Re:Wrong again

[Intron]

Nobody has to agree to the GPL. However, if you don't agree to it you have no license to the code.

Re:Why use VMWare?

[Anonymous Coward]

Comparing ESX to VMware Workstation is like comparing Red Hat Enterprise Linux to Knoppix. VMware Workstation was basically a get-mindshare product for them, that most people used for free and which they never cared too much about.

Re: Wrong again

[Anonymous Coward]

The GPL is a copyright license. If you don't agree to it, you NO rights to copy anything. If you use code that is GPL, you just don't have any choice but to agree.

As said, the alternative is that you have no rights to copy at all. The PHB's at VMWare probably understand that better than you do as well as the lawyers.

Re:Why use VMWare?

[Billly Gates]

I don't know about the ESX version, but in my opinion, VMWare Workstation is a heap of steaming crap. We see VMs that slow down, even though the slow VM is the single VM that is busy on the host. Frequent re-starts appear to be the only solution to this.

We tried a shared filesystem (shared between the host and other guests) and performance was terrible.

Combined with VMWare firing the desktop developers, I cannot understand why anyone would pay for this.

Well try running a whole enterprise with clustering, eSAN storage, virtual switching, failovers, cloud integration for backups, expiring VM's, auditing for infosec, ability to move the VM's anywhere, and command line tools to automate tens of thousands of virtual servers all on virtualbox and let me see how far you get?

FYI Vmware workstation is their obsolete product they made in 1998 which is a type 2 hypervisor. ESX is a type 1 which means no special messy drivers to translate things back and forth. The guests can talk to the hardware directly in a type 1 which means no slow down unless hardware is overloaded. ESX is a totally different product!

The only thing that may even kind of come close is Hyper-V on Windows which is a type-1. If you have the pro version of 8 - 10 you can enable it and play with it and see how much better it is compared to VirtualBox and Vmware workstation? But last I saw checkpoints were not production ready??? What?! Seriously? I use them at home but with checkpoints and until MS can guarantee I can do a checkpoint what choice do I have at work but to use ESX to manage virtually everything that is not tied down to solo host servers.

Re:Why use VMWare?

[Billly Gates]

Comparing ESX to VMware Workstation is like comparing Red Hat Enterprise Linux to Knoppix. VMware Workstation was basically a get-mindshare product for them, that most people used for free and which they never cared too much about.

More like Minux to Gnu/Linux. Not in the same league and a different product. VMWare Workstation is quite expensive and no longer supported by Dell from what I read since Hyper-V is now available for free with Windows 8-10 pro/enterprise.

Re: Que the consultant guy...

[buchanmilne]

Furthermore, after reviewing this GPL our lawyers advised us that any products compiled with GPL'ed tools - such as gcc - would also have to its source code released.

Why hasn't anyone sued Oracle then? Oh right, this is obviously false and you are trolling.

Although we had planned for no one outside of this company to ever use, let alone see the source code, we were now put in a difficult position.

Yes, that of explaining how you paid lawyers who don't understand the word 'distribute'.

Re: Wrong again

[buchanmilne]

"Did Vmware actually agree to the GPL?"

Since they provide GPL copyright notices in their products pertaining to 3rd-party components that they distribute to others legal entities, they have agreed to it or are guilty of copyright infringement.

Re: Why use VMWare?

[buchanmilne]

Well try running a whole enterprise with clustering, eSAN storage, virtual switching, failovers, cloud integration for backups, expiring VM's, auditing for infosec, ability to move the VM's anywhere, and command line tools to automate tens of thousands of virtual servers all on virtualbox and let me see how far you get?

Why would I do that when i could just use ovirt, or the commercially supported version that is faster and significantly cheaper with 90% feature parity to vSphere Enterprise Plus, Red Hat Enterprise Virtualisation (RHEV)?

Re: Wrong again

[Zontar The Mindless]

The old "moo" mentality? For all you know the MOOs at MOOware wipe their asses with toilet paper with MOO printed on it.

By reading this post you implicitly moo that you're a cow.

I'm pretty sure that's what you actually meant. Happy Monday!

Re: Que the consultant guy...

[rl117]

You've posted this exact text to other stories. Please stop. The content is garbage. Code compiled with GCC is not forced to be GPL and never has been. Your compiled code retains your licence. Changes you make to the Linux kernel would be required to be GPL if you distribute them, the GPL being a *distribution* licence, but are required to be given to people you *distribute* the changes to only, not the whole world. If this is for real, and not just a lame troll, you got lousy advice from your "lawyers".

Re: Que the consultant guy...

[technosaurus]

I don't like the GPL, but you misunderstand the legalese. You only have to distribute the source to whoever you distribute the binary. You can make as many changes as you wish within an organization without distributing the source outside of the organization. This includes work for hire.

Re: Que the consultant guy...

[radoslav.dejanovic]

I'd say that your lawyers aren't very competent: they failed to check the legal framework first, and then they failed to interpret it correctly (gcc doesn't force anyone to release the code compiled with it). The utter incompetence of your lawyers made your solution more expensive and forced your customer to move to an undesired platform, incurring additional costs to them as well. It's not that you, your clients or GPL failed... your lawyers failed.

Re: Why use VMWare?

[drinkypoo]

oVirt is powered by the Open Source you know - KVM on Linux.

So utterly useless on Windows. Because I really want to use a different Virtualization solution on every platform I have to manage. It is 2016 people, there is no excuse to write non portable crapware.

If you're running vmware ESX or whatever it is called now, then linux is running on the metal no matter what the guest OSes are. So "utterly useless on Windows" is completely meaningless here. You don't run vmware on Windows, unless you are either 1) a moron or 2) just doing some testing. The performance is much better when the host runs Linux.

Re: Why use VMWare?

[jonwil]

I run vmware player on my Windows 7 machine. But I am not running it 24/7 or anything like that. I use it to run a Linux development environment for my Nokia N900 phone (there is a ready-made Ubuntu vmware VM file for N900 development and its easier to run it that way than dual boot all the time)

Re: Wrong again

[WarJolt]

GPLv2 dictates how code and binaries can be distributed. If you never transfer any software to any other party GPLv2 really has no restrictions on use.

Re:Wrong again

[hcs_$reboot]

Unfortunately, some (many?) manufacturers use GPL code (the whole Linux OS + other apps) without releasing the part they modified/added, or only providing a completely obsolete version of it (eg the first one built 3 years ago).

Re: Que the consultant guy...

[Interfacer]

I am fairly certain that I've read that exact post a couple of times over the last couple of years.

Re: Que the consultant guy...

[Kjella]

It was brought to our attention that Linux is copyrighted under something called the GPL, or the Gnu Protective License.

If this is for real, and not just a lame troll, you got lousy advice from your "lawyers".

Obvious troll trying to bring OSS zealots to nerd rage and write long posts to dispute it.

Re:Wrong again

[swillden]

Unfortunately, some (many?) manufacturers use GPL code (the whole Linux OS + other apps) without releasing the part they modified/added, or only providing a completely obsolete version of it (eg the first one built 3 years ago).

Which ones? Hellwig can sue them, too.

Re: Que the consultant guy...

[Holi]

DO NOT FEED THE TROLLS

Re: Wrong again

[Megol]

No it isn't! One have to accept the license to copy the software but as long as you don't distribute it you don't have to accept anything..

Use* GPL licensed software?
Compile GPL licensed source code?

Allowed without accepting the license.

Distribute GPL software? Must accept the license (otherwise one goes against the copyright) and follow the instructions.

Re: Que the consultant guy...

[pscottdv]

Kinda dumb doing all that work before looking at the license, don't you think?

Re: Wrong again

[Dragonslicer]

No it isn't! One have to accept the license to copy the software but as long as you don't distribute it you don't have to accept anything..

Use* GPL licensed software? Compile GPL licensed source code?

Allowed without accepting the license.

Distribute GPL software? Must accept the license (otherwise one goes against the copyright) and follow the instructions.

I've emphasized the part of your post that is correct, since you're not quite correct in the rest of your post. As soon as you make a copy of the source code, you have accepted the terms of the copyright license, even if you don't distribute anything.

The terms of the GPL allow you to do pretty much whatever you want until you distribute the software, at which point you are required to make the source code available to anyone you give the software to. That's specific to the GPL, though; it is not an aspect of copyrights in general.

Re: Que the consultant guy...

[bad-badtz-maru]

Even as a stale troll, this is hilarious. "I'd always done my work on Windows" but the best solution for their client, when using Linux, is for them to immediate start mucking with the kernel source.

Re: Why use VMWare?

[drinkypoo]

I use vmware player on windows 7 in several cases where performance doesn't matter at all, like automotive service manual software, so there clearly are cases where it makes sense. But in general, it's not running a server.

Re:Wrong again

[angel'o'sphere]

Which ones? Hellwig can sue them, too.
Actually he can't, unless he is the copy right holder.

Re: Que the consultant guy...

[angel'o'sphere]

Furthermore, after reviewing this GPL our lawyers advised us that any products compiled with GPL'ed tools - such as gcc - would also have to its source code released.
Your lawyer is not only wrong, he is incompetent. You are heavily advised to get a better one.

After my experience with Linux, I won't be recommending it to any of my associates.
Perhaps you should post under your real name, so we can avoid your advice?

A huge deal of the internet is running on Linux. That does not make the software running on it tainted by the GPL ...

Re:ESXi is NOT Linux

[HiThere]

Given that what you have asserted is true, it sounds as if the court made the right decision, even if for the wrong reasons.

From what others have said, however, the reasons for the court decision were definitely wrong. Refusing to examine expert testimony isn't a valid basis for decision. (Deciding that it's wrong may be, but that isn't what was reported as happening here.)

OTOH, there are other grounds for suspecting that VMWare might be in the right. Most of them, however, would require examining the code to validate.

Re:Why use VMWare?

[sl3xd]

The only thing that may even kind of come close is Hyper-V on Windows which is a type-1.

Xen is type-1 as well.

Re: Wrong again

[sexconker]

If you use code that is GPL, you just don't have any choice but to agree.

Wrong. You have the choice of not agreeing to the GPL, not ever seeing the GPL, ignoring the GPL, etc. and violating copyright law as a result.

The GPL is a copyright license. If you don't agree to it, you NO rights to copy anything.

Mostly correct. US copyright law doesn't invade every aspect of your life or cover every inch of the globe (yet).

glitch! is correct, and he's modded Troll. And I'm modded flamebait. Fucking Slashdot retards.

Unless you can prove they explicitly agreed to the GPL, the allegation here is that they violated copyright law. Copying something covered by the GPL does not implicitly mean you've agreed to the GPL. This is the distinction glitch! and I are pointing out.

Re: Why use VMWare?

[JayJay.br]

Sorry, but no. ESXi runs a custom proprietary kernel called "vmkernel" and has been this way since 1.0. You may be confused by the fact that up to v4.1 there was a Linux virtual machine running on top of it dubbed the "service console". Since v5.0 it has been removed. But even before, the Linux OS you mention is not the one that runs on the metal.

Nowadays ESXi has no Linux running whatsoever, but there is a busybox shell that may make it look like so.

Please note that I am not taking sides on whether the GPL has been infringed. Just saying that the Linux kernel is positively not there.

Rant Less, Read More

[daboochmeister]

The allegation isn't that VMware uses the Linux kernel, or that "VMware is linux" or whatever straw man you're attacking ... the allegation is specific to SCSI subsystem code that Hellwig wrote for the Linux kernel. There's been reasonably credible evidence they did use that specific code (which is from the main kernel tree, not a driver). No one is claiming that VMware "stole" Linux as a whole and is using it.

Re:Wrong again

[swillden]

Which ones? Hellwig can sue them, too. Actually he can't, unless he is the copy right holder.

He is a copyright owner of considerable chunks of Linux, which is why he's involved in this suit.

Re: Wrong again

[Megol]

Have you read the licence text recently? It explicitly states that using GPL software doesn't require accepting the licence. Modifying the source code and distribution of source and/or binaries are what requires acceptance of the terms according to it. I choose not to list modification as there are arguments that a single user modifying source code that is legal to have and use (according to the licence text) can't be in violation of copyright laws.

Re: Wrong again

[Dragonslicer]

In a way, though, that's sort of an impossible statement. The reason that you can run the software without accepting the license is because the license explicitly says that you can. So you're accepting the license when you run the program, but most of the license doesn't apply to you. Courts have ruled that copying the program from disk to RAM in order to execute it counts as making a copy as far as copyright law is concerned (not to say that I agree with the ruling, but that's where they stand right now). So when the GPL says you don't have to accept the license in order to run the software, the effective statement is really that none of the other terms of the license apply to you if you are only running the software.

Re:Wrong again

[angel'o'sphere]

We talked about GPL in general and other apps.

At least that was the point you liked to make in your previous post.

My point is: you can only sue as a proxy of the copyright holder or if you hold the copyright yourself.

Re: Wrong again

[david_thornley]

This also means that the damages and penalties possible are those for copyright infringement, which means nobody can be forced to release their work under the GPL because they derived it from GPLed code. They can face monetary damages and be hit with injunctions in the US, but that's the extent of it.

Re: Wrong again

[david_thornley]

I can make copies of the source code without accepting anything. I can't do it legally, but what happens is that I've copied without a valid license, as opposed to accepted a license and violated the terms.

Re: Wrong again

[Dragonslicer]

I guess if you want to play meaningless semantics games, sure. You can also say that you automatically accept the license when you make the copy, and then you can still go ahead and do things that violate the license. It doesn't matter how you want to state what you did, you would be liable for copyright infringement either way.

Re:Wrong again

[swillden]

Ah, yes, I was referring only to the Linux kernel. Yes, obviously you have to be a copyright owner to have standing to sue.