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

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<h1>Frequently Asked Questions about Christoph Hellwig's VMware Lawsuit</h1>

<p>Conservancy maintains this
  <abbr title="Frequently Asked Questions">FAQ</abbr> 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 the court documents released?</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's 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 the 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>
      <a href="/linux-compliance/linux-vs-vmkernel_en_scaled.png">
    <img alt="[Diagram of Linux and VMware running kernels" src="/linux-compliance/linux-vs-vmkernel_en_scaled.png" width="519" height="392" /></a>
    </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 copyleft and the GPL.  How can I help?</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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