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

Posted by EditorDavid on from the taking-some-license dept.

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."

25 of 162 comments (clear)

  1. Verdict sound legitimate by hcs_$reboot · · Score: 4, Interesting

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

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    Slashdot, fix the reply notifications... You won't get away with it...
    1. Re: Verdict sound legitimate by Luthair · · Score: 3, Interesting

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

    2. Re:Verdict sound legitimate by Anonymous Coward · · Score: 2, Interesting

      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.

    3. Re:Verdict sound legitimate by bloodhawk · · Score: 2

      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.

    4. Re: Verdict sound legitimate by zwarte+piet · · Score: 2

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

    5. Re: Verdict sound legitimate by bloodhawk · · Score: 2

      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.

    6. Re:Verdict sound legitimate by phantomfive · · Score: 3, Informative

      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?

      --
      "First they came for the slanderers and i said nothing."
    7. Re:Verdict sound legitimate by Anonymous Coward · · Score: 4, Informative

      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).

    8. Re: Verdict sound legitimate by Antique+Geekmeister · · Score: 2

      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.

    9. Re: Verdict sound legitimate by gavron · · Score: 2

      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.

    10. Re: Verdict sound legitimate by buchanmilne · · Score: 5, Interesting

      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.)

    11. Re: Verdict sound legitimate by aberglas · · Score: 2

      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.

    12. Re: Verdict sound legitimate by Anonymous Coward · · Score: 3, Insightful

      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.

    13. Re: Verdict sound legitimate by Anonymous Coward · · Score: 2, Informative

      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...

    14. Re: Verdict sound legitimate by CSMoran · · Score: 2

      for whoever wants to peak at a companies source code.

      Sounds like a weird fetish, even in this community.

      --
      Every end has half a stick.
    15. Re: Verdict sound legitimate by jellomizer · · Score: 2

      "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.

      --
      If something is so important that you feel the need to post it on the internet... It probably isn't that important.
    16. Re: Verdict sound legitimate by mark-t · · Score: 2

      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.

      --
      File under 'M' for 'Manic ranting'
  2. Re:Wrong again by iCEBaLM · · Score: 3, Insightful

    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.

  3. Re:Wrong again by Intron · · Score: 3, Insightful

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

    --
    Intron: the portion of DNA which expresses nothing useful.
  4. Re: Wrong again by Anonymous Coward · · Score: 2, Insightful

    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.

  5. Re:Why use VMWare? by Billly+Gates · · Score: 2

    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.

    --
    http://saveie6.com/
  6. Re: Why use VMWare? by buchanmilne · · Score: 2

    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)?

  7. Re: Que the consultant guy... by rl117 · · Score: 3, Informative

    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".

  8. Re: Why use VMWare? by drinkypoo · · Score: 2

    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.

    --
    "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
  9. Re: Wrong again by Megol · · Score: 2

    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.