website/www/conservancy/static/linux-compliance/vmware-lawsuit-faq.html

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{% block subtitle %}GPL Compliance Project For Linux Developers - {% endblock %}
{% block submenuselection %}VMwareLawsuitFAQ{% endblock %}
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<h1>Frequently Asked Questions about Christoph Hellwig's VMware Lawsuit</h1>
<p>Conservancy maintains this
<acronym title="Frequently Asked Questions">FAQ</acronym> list regarding
<a href="/news/2015/mar/05/vmware-lawsuit/">Christoph Hellwig's lawsuit against VMware
in Germany over alleged GPL violations on Linux</a> as a service to the
Free Software community, and in particular, the copyleft community. Conservancy
realizes this lawsuit generates many questions and interest
from the community. Legal counsel (both Conservancy's own, and
Christoph's lawyer, Till Jaeger) correctly advise us to limit our public
comments regarding specific details of the case while litigation remains
pending in court. Nevertheless, Conservancy, as a
non-profit charity serving the public good, seeks to be as transparent as
possible. If you have additional questions you'd like to see answered
here, please <a href="mailto:info@sfconservancy.org">email
&lt;info@sfconservancy.org&gt;</a>, but understand that we may often need
to answer: <q>We cannot comment on this while litigation is pending</q>.</p>
<dl>
<dt>Who is the Plaintiff in the lawsuit?</dt>
<dd>Christoph is one of most active developers of the Linux kernel. He has
contributed 279.653 lines of code to the latest Linux 3.19 kernel, and
thus ranks 20th amongst the 1,340 developers involved in that release.
Christoph also ranks 4th among those who have reviewed third-party source
code, tirelessly corrected and commented on other developers'
contributions.</dd>
<dt>Are there any court documents to read?</dt>
<dd>Not currently. Court proceedings are not public by default in Germany
(unlike in the USA). Conservancy will continue to update this FAQ with
information that Conservancy knows about the case. We would all also
welcome an agreement with VMware whereby both sides would agree to publish
all Court documents. </dd>
<dt>Who is funding this lawsuit?</dt>
<dd>Conservancy has engaged in a grant agreement with Christoph Hellwig for
the purposes of pursuing this specific legal action in Germany.
Conservancy is funding this legal action specifically as part of
Conservancy's program activity in
its <a href="/linux-compliance/about.html">GPL Compliance
Project for Linux Developers</a>.</dd>
<dt>Is this the Great Test Case of Combined/Derivative Works?</dt>
<dd>This case is specifically regarding a combined work that VMware
allegedly created by combining their own code (&ldquo;vmkernel&rdquo;) with
portions of Linux's code, which was licensed only under GPLv2. As such,
this, to our knowledge, marks the first time an enforcement case is
exclusively focused on this type of legal question relating to GPL.
However, there are so many different ways to make combined and/or
derivative works that are covered by GPL that no single case could possibly
include all such issues. </dd>
<dt>Why must you file a lawsuit? Isn't there any other way to convince
VMware to comply with GPL?</dt>
<dd><p>Neither Conservancy nor Christoph takes this action lightly nor without
exhausting every other possible alternative first. This lawsuit is the
outgrowth of years of effort to convince VMware to comply with GPL.</p>
<p>In October 2011, Conservancy received a GPL violation report on
BusyBox for VMware's ESXi products. Conservancy opened the matter in its
usual, friendly, and non-confrontational way. Nevertheless, VMware
immediately referred Conservancy to VMware's outside legal counsel in the
USA, and Conservancy negotiated with VMware's legal counsel throughout
late 2011, 2012 and 2013. We exchanged and reviewed CCS candidates, and
admittedly, VMware made substantial and good efforts toward compliance on
BusyBox. However, VMware still refused to fix a few minor and one major
compliance problem that we discovered during the process. Namely, there
was a major violation regarding Linux itself that ultimately became
Christoph's key complaint in this lawsuit.</p>
<p>Meanwhile, when Conservancy realized in late 2012 there might be a major
Linux violation still present in VMware's ESXi products, Conservancy
representatives sought every industry contact we had for assistance,
including those from trade associations, companies (both competitors and
collaborators with VMware), and everyone else we could think of who might be
able to help us proceed with friendly negotiations that would achieve
compliance. While we cannot name publicly the people we asked for help
to convince VMware to comply, they include some of the most notable
executives, diplomats, and engineering managers in the Linux community. No
one was able to assist Conservancy in convincing VMware to comply with the
GPL. Then, in early 2014, VMware's outside legal counsel in the USA finally
took a clear and hard line with Conservancy stating that they would not
comply with the GPL on Linux and argued (in our view, incorrectly) that they
were already in compliance.</p>
<p>Conservancy in parallel informed Christoph fully of the details of the
Linux violation on Christoph's copyrights, and based on Conservancy's
findings, Christoph began his own investigation and confirmed
Conservancy's compliance conclusions. Christoph then began his own
enforcement effort with legal representation from Till Jaeger. Christoph has
been unable to achieve compliance, either, through his negotiations in
2014. VMware's last offer was a proposal for a settlement agreement that VMware would
only provide if Christoph signed an NDA, and Christoph chose (quite
reasonably) not to sign an NDA merely to look at settlement offer.</p>
<p>Thus, this lawsuit comes after years of negotiations by Conservancy to
achieve compliance &mdash; negotiations that ended in an outright refusal by
VMware's lawyers to comply. Those events were then followed by a year of
work by Christoph and Till to achieve compliance in a separate action.</p>
<p>Simply put, Conservancy and Christoph fully exhausted every possible
non-litigation strategy and tactic to convince VMware to do the right thing
before filing this litigation.</p>
</dd>
<dt>Can you explain further how VMware incorporated code from Linux into
their kernel?</dt>
<dd>Conservancy prepared this diagram to show the technical situation as we
understand it. The diagram compares the technical architecture of a full,
running Linux kernel with a full, running VMware kernel:
<p>
<svg width="519" height="392">
<image xlink:href="/linux-compliance/linux-vs-vmkernel_en.svg" src="/linux-compliance/linux-vs-vmkernel_en.png" width="519" height="392" />
</svg></p>
<p>If you want to download the diagram, it's available
in <a href="/linux-compliance/linux-vs-vmkernel_en.svg">SVG
(English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_en.png">PNG
(English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_de.svg">SVG
(German)</a>, and <a href="/linux-compliance/linux-vs-vmkernel_de.png">PNG
(German)</a>.</p>
</dd>
<dt>I care about the future of copyleft and the GPL. How can I help this effort?</dt>
<dd>Conservancy needs <a href="#donate-box" class="donate-now">your immediate financial
support to proceed with this litigation</a>. Litigation costs are
unpredictable, and this lawsuit may take years to resolve. Conservancy is
prepared to fund this case through its conclusion, but we can only do so
with <a href="/supporter/"><em>your</em> support</a>. If you are an
individual who supports copyleft and wants to see it defended, please
donate now.</dd>
<dt>Why is the case in Germany?</dt>
<dd>Copyright infringement claims can be brought anywhere that distribution
of the copyrighted works occur. VMware distributes ESXi throughout the
world, but Germany is close to Christoph's home and his lawyer was
available to do the litigation work there. Finally, historically,
Mr. Jaeger's cases in Germany have usually achieved worldwide compliance on
the products at issue in those cases.</dd>
</dl>
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