|
|
|
@ -27,51 +27,59 @@
|
|
|
|
|
<info@sfconservancy.org></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>
|
|
|
|
|
<details>
|
|
|
|
|
<summary>Who is the Plaintiff in the lawsuit?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Christoph is one of most active developers of the Linux kernel. He has
|
|
|
|
|
<p>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 among the 1,340 developers involved in that release.
|
|
|
|
|
Christoph also ranks 4th among those who have reviewed third-party source
|
|
|
|
|
code, and he has tirelessly corrected and commented on other developers'
|
|
|
|
|
contributions.</dd>
|
|
|
|
|
contributions.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="court-documents">Are the court documents released?</dt>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dd>Not currently. Court proceedings are not public by default in Germany
|
|
|
|
|
(unlike in the USA). Conservancy will continue to update this FAQ with
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="court-documents">Are the court documents released?</summary>
|
|
|
|
|
|
|
|
|
|
<p>Not currently. Court proceedings are not public by default in Germanyg (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. Unfortunately, VMware has explicitly asked for the
|
|
|
|
|
filings not to be published. Accordingly, Conservancy itself has not
|
|
|
|
|
even been able to review VMware's statement of defense nor Christoph's
|
|
|
|
|
response to that statement of defense.</dd>
|
|
|
|
|
response to that statement of defense.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="funding">Who's funding this lawsuit?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="funding">Who's funding this lawsuit?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Conservancy has engaged in a grant agreement with Christoph Hellwig for
|
|
|
|
|
<p>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="/copyleft-compliance/about.html">GPL Compliance
|
|
|
|
|
Project for Linux Developers</a>.</dd>
|
|
|
|
|
Project for Linux Developers</a>.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="combined-and-derivative-works">Is this the Great Test Case of Combined / Derivative Works?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="combined-and-derivative-works">Is this the Great Test Case of Combined / Derivative Works?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>This case is specifically regarding a combined work that VMware
|
|
|
|
|
<p>This case is specifically regarding a combined work that VMware
|
|
|
|
|
allegedly created by combining their own code (“vmkernel”) 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>
|
|
|
|
|
include all such issues. </p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="why-lawsuit">Why must you file a lawsuit? Isn't there any other way to convince
|
|
|
|
|
VMware to comply with GPL?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="why-lawsuit">Why must you file a lawsuit? Isn't there any other way to convince VMware to comply with GPL?</summary>
|
|
|
|
|
|
|
|
|
|
<dd><p>Neither Conservancy nor Christoph takes this action lightly nor without
|
|
|
|
|
<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>
|
|
|
|
|
|
|
|
|
@ -121,22 +129,26 @@
|
|
|
|
|
<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>
|
|
|
|
|
</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt>What are VMware's primary defenses for their alleged copyright
|
|
|
|
|
infringement?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary>What are VMware's primary defenses for their alleged copyright
|
|
|
|
|
infringement?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>With the guidance of counsel, Christoph was able to provide Conservancy
|
|
|
|
|
<p>With the guidance of counsel, Christoph was able to provide Conservancy
|
|
|
|
|
with a high-level summary of VMware's statement of defense, which we share
|
|
|
|
|
in this FAQ. Specifically, VMware's statement of defense primarily focuses
|
|
|
|
|
on two issues. First, VMware questions Christoph's copyright interest in
|
|
|
|
|
the Linux kernel and his right to bring this action. Second, VMware claims
|
|
|
|
|
vmklinux is an “interoperability module” which communicates
|
|
|
|
|
through a stable interface called VMK API.</dd>
|
|
|
|
|
through a stable interface called VMK API.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt>How did Christoph respond to VMware's statement of defense?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary>How did Christoph respond to VMware's statement of defense?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Christoph's response discusses his extensive contributions to the Linux
|
|
|
|
|
<p>Christoph's response discusses his extensive contributions to the Linux
|
|
|
|
|
kernel and disputes the technical merits of VMware's assertions. The
|
|
|
|
|
response points out that vmklinux is <strong>not</strong> an
|
|
|
|
|
interoperability module, but rather an arbitrary separation of the Linux
|
|
|
|
@ -152,12 +164,14 @@
|
|
|
|
|
VMK API, as used by vmklinux, is not an “interface” as set
|
|
|
|
|
forth in
|
|
|
|
|
the <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009L0024&from=EN">EU
|
|
|
|
|
Directive 2009/24/EC</a>.</dd>
|
|
|
|
|
Directive 2009/24/EC</a>.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="tech">Can you explain further how VMware incorporated code from Linux into
|
|
|
|
|
their kernel?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="tech">Can you explain further how VMware incorporated code from Linux into
|
|
|
|
|
their kernel?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>
|
|
|
|
|
<p>
|
|
|
|
|
<p id="diagram">
|
|
|
|
|
Conservancy prepared this diagram to show the technical situation as we
|
|
|
|
|
understand it. The diagram compares the technical architecture of a full,
|
|
|
|
@ -173,11 +187,13 @@
|
|
|
|
|
(English)</a>, <a href="/copyleft-compliance/linux-vs-vmkernel_de.svg">SVG
|
|
|
|
|
(German)</a>, and <a href="/copyleft-compliance/linux-vs-vmkernel_de.png">PNG
|
|
|
|
|
(German)</a>.</p>
|
|
|
|
|
</dd>
|
|
|
|
|
</p>
|
|
|
|
|
</p>details>
|
|
|
|
|
|
|
|
|
|
<dt>Can you explain further in words (rather than a picture) about the central
|
|
|
|
|
component in ESXi that the lawsuit alleges violates the GPL?</dt>
|
|
|
|
|
<dd>
|
|
|
|
|
<details>
|
|
|
|
|
<summary>Can you explain further in words (rather than a picture) about the central
|
|
|
|
|
component in ESXi that the lawsuit alleges violates the GPL?</summary>
|
|
|
|
|
<p>
|
|
|
|
|
<p>The GPL violation at issue involves VMware's ESXi product.
|
|
|
|
|
Conservancy independently reviewed ESXi and its incomplete
|
|
|
|
|
<abbr title="complete, corresponding source">CCS</abbr>
|
|
|
|
@ -198,13 +214,15 @@ Code, and for which (at least some) source code is provided.
|
|
|
|
|
<p>Conservancy examined the incomplete CCS alongside the
|
|
|
|
|
binary “vmkernel” component. Such examination indicates that functions
|
|
|
|
|
in “vmkernel” do make function calls to Linux's kernel code
|
|
|
|
|
in the usual way for a single program written in C.</p></dd>
|
|
|
|
|
in the usual way for a single program written in C.</p></p>
|
|
|
|
|
</li>details>
|
|
|
|
|
|
|
|
|
|
<dt>Doesn't VMware's “shim layer” insulate them from GPL
|
|
|
|
|
<details>
|
|
|
|
|
<summary>Doesn't VMware's “shim layer” insulate them from GPL
|
|
|
|
|
obligations and allow them to keep certain code in their kernel
|
|
|
|
|
proprietary?</dt>
|
|
|
|
|
proprietary?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>
|
|
|
|
|
<p>
|
|
|
|
|
<p>Many in the media have talked about the possibility that VMware might
|
|
|
|
|
use some so-called “shim layer” between Linux code and
|
|
|
|
|
VMware's proprietary code. While, for decades, there has been much talk of
|
|
|
|
@ -220,20 +238,24 @@ Code, and for which (at least some) source code is provided.
|
|
|
|
|
code in their own kernel, and evidence seems to indicate the work as a
|
|
|
|
|
whole was developed by modifying Linux code in tandem with
|
|
|
|
|
modifications to “vmkernel” in a tightly coupled manner.</p>
|
|
|
|
|
</dd>
|
|
|
|
|
<dt id="shim-meaningless">Is Conservancy proposing a “shim
|
|
|
|
|
layer” as a viable solution for GPL compliance?</dt>
|
|
|
|
|
</p></details>
|
|
|
|
|
|
|
|
|
|
<dd>No, in fact, as we say above, Conservancy doesn't think the phrase
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="shim-meaningless">Is Conservancy proposing a “shim
|
|
|
|
|
layer” as a viable solution for GPL compliance?</summary>
|
|
|
|
|
|
|
|
|
|
<p>No, in fact, as we say above, Conservancy doesn't think the phrase
|
|
|
|
|
“shim layer” has any meaning, despite regular use of that
|
|
|
|
|
phrase in the media. Conservancy generally doubts there is any
|
|
|
|
|
technological manipulation that changes the outcome of a
|
|
|
|
|
combined/derivative work analysis.</dd>
|
|
|
|
|
combined/derivative work analysis.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="example">Can you give a <em>specific</em> example, with code, showing how
|
|
|
|
|
VMware combined Linux source code with their binary-only components?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="example">Can you give a <em>specific</em> example, with code, showing how
|
|
|
|
|
VMware combined Linux source code with their binary-only components?</summary>
|
|
|
|
|
|
|
|
|
|
<dd><p>There are numerous examples available that show this. The
|
|
|
|
|
<p><p>There are numerous examples available that show this. The
|
|
|
|
|
details of alleged infringement specifically relating to Hellwig's
|
|
|
|
|
contributions to Linux are of course the main matter of the
|
|
|
|
|
allegations in the litigation, and Conservancy
|
|
|
|
@ -282,7 +304,7 @@ LinuxPCIDeviceRemoved(vmk_PCIDevice vmkDev)
|
|
|
|
|
VMKAPI_MODULE_CALL_VOID(pciDevExt->moduleID,
|
|
|
|
|
linuxDev->driver->remove,
|
|
|
|
|
linuxDev);
|
|
|
|
|
</pre>
|
|
|
|
|
</pre>
|
|
|
|
|
|
|
|
|
|
<h4>Combination of “vmkernel” code with “vmkdrivers”</h4>
|
|
|
|
|
|
|
|
|
@ -476,10 +498,12 @@ static struct pci_driver tg3_driver = {
|
|
|
|
|
to explain some of the “combined work” violations found in
|
|
|
|
|
VMware's ESXi product. Conservancy did a similar analysis for ESXi 5.0
|
|
|
|
|
as well as ESXi 5.5 Update 2 and found nearly identical results.</p>
|
|
|
|
|
</p>details>
|
|
|
|
|
|
|
|
|
|
<dt id="verify">How can I verify Conservancy's technical findings above?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="verify">How can I verify Conservancy's technical findings above?</summary>
|
|
|
|
|
|
|
|
|
|
<dd><p>The binary and source packages mentioned above are available
|
|
|
|
|
<p><p>The binary and source packages mentioned above are available
|
|
|
|
|
on VMware's website. These packages contain the
|
|
|
|
|
previously-mentioned <code>linux_pci.c</code>,
|
|
|
|
|
<code>vmkapi_pci_incompat.h</code>, and <code>k.b00</code> files, as well as
|
|
|
|
@ -577,22 +601,26 @@ at <code>bin/vmtar</code> inside
|
|
|
|
|
terms in great detail with the assistance of your own legal counsel before
|
|
|
|
|
downloading the software and/or engaging in the process that Conservancy
|
|
|
|
|
discusses above.</p>
|
|
|
|
|
</p>details>
|
|
|
|
|
|
|
|
|
|
<dt id="similarity-analysis">How do you know Christoph's code is present in
|
|
|
|
|
VMware's work?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="similarity-analysis">How do you know Christoph's code is present in
|
|
|
|
|
VMware's work?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Conservancy
|
|
|
|
|
<p>Conservancy
|
|
|
|
|
published <a href="/copyleft-compliance/vmware-code-similarity.html">its
|
|
|
|
|
comparison analysis between Christoph's code and VMware's code</a>. This
|
|
|
|
|
particular analysis uses a two step process: (a) use Linux's public Git logs
|
|
|
|
|
to find Christoph's contributions from Christoph, and (b) use a widely
|
|
|
|
|
accepted and heavily academically cited tool, CCFinderX, to show that VMware
|
|
|
|
|
copied Christoph's code into their product.</dd>
|
|
|
|
|
copied Christoph's code into their product.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt id="appeal">I heard that Christoph's case was dismissed. Is that
|
|
|
|
|
true?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary id="appeal">I heard that Christoph's case was dismissed. Is that
|
|
|
|
|
true?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>There was a ruling in July 2016 in the Hamburg District Court, which
|
|
|
|
|
<p>There was a ruling in July 2016 in the Hamburg District Court, which
|
|
|
|
|
dismissed Christoph's case against VMware. The ruling concerned German
|
|
|
|
|
evidence law and the Court did not rule on the merits of the case. The
|
|
|
|
|
ruling centered around German evidentary rules related to documenting
|
|
|
|
@ -605,9 +633,11 @@ copied Christoph's code into their product.</dd>
|
|
|
|
|
the Court's ruling</a> which explains why the materials submitted did not
|
|
|
|
|
satisfy German evidence rules — despite publicly available
|
|
|
|
|
information in Linux's Git repositories. In addition, the Court chose not
|
|
|
|
|
to seek expert testimony.</dd>
|
|
|
|
|
<dt id="statements-of-support">Have others issued statements of support about this action?</dt>
|
|
|
|
|
<dd>Various individuals and groups have publicly stated their support for
|
|
|
|
|
to see</p>details>
|
|
|
|
|
|
|
|
|
|
<details>k expert testimony.</p>
|
|
|
|
|
<summary id="statements-of-support">Have others issued statements of support about this action?</summary>
|
|
|
|
|
<p>Various individuals and groups have publicly stated their support for
|
|
|
|
|
Conservancy's and Hellwig's actions in this matter. They include:
|
|
|
|
|
<ul>
|
|
|
|
|
<li><a href="http://www.april.org/en/statement-support-software-freedom-conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit">APRIL</a></li>
|
|
|
|
@ -631,15 +661,17 @@ copied Christoph's code into their product.</dd>
|
|
|
|
|
Triplett, Linux Developer</a></li>
|
|
|
|
|
<li><a href="https://lwn.net/Articles/635617/">Rik van Riel, Linux Developer</a></li>
|
|
|
|
|
</ul>
|
|
|
|
|
</dd>
|
|
|
|
|
</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt>I
|
|
|
|
|
<details>
|
|
|
|
|
<summary>I
|
|
|
|
|
see <a href="https://fsf.org/news/conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit">FSF's
|
|
|
|
|
statement of support</a>, but why
|
|
|
|
|
isn't <a href="https://www.fsf.org/licensing/compliance">FSF enforcing</a> in
|
|
|
|
|
this case?</dt>
|
|
|
|
|
this case?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>While FSF are the authors and license steward of the GNU GPL, it's up to
|
|
|
|
|
<p>While FSF are the authors and license steward of the GNU GPL, it's up to
|
|
|
|
|
the copyright holder to enforce GPL. VMware created an operating system by
|
|
|
|
|
combining parts of the kernel named Linux with their own proprietary code,
|
|
|
|
|
and then added BusyBox to provide the userspace operating system components.
|
|
|
|
@ -648,11 +680,13 @@ a <a href="https://www.gnu.org/gnu/linux-and-gnu.html">traditional GNU/Linux
|
|
|
|
|
system</a>. FSF has many copyrights of its own, but these are almost
|
|
|
|
|
exclusively on various parts of the GNU system, not on the kernel, Linux. As
|
|
|
|
|
such, FSF probably does not have copyright interests available to directly
|
|
|
|
|
enforce the GPL regarding the primary issue in this case.</dd>
|
|
|
|
|
enforce the GPL regarding the primary issue in this case.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt><em>I</em> care about copyleft and the GPL. How can I help?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary><em>I</em> care about copyleft and the GPL. How can I help?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Conservancy needs <a href="#donate-box" class="donate-now">your immediate financial
|
|
|
|
|
<p>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
|
|
|
|
@ -661,18 +695,19 @@ enforce the GPL regarding the primary issue in this case.</dd>
|
|
|
|
|
donate now. And, if you make a public statement of support, please email the
|
|
|
|
|
URL
|
|
|
|
|
to <a href="mailto:info@sfconservancy.org"><info@sfconservancy.org></a>,
|
|
|
|
|
as we'd like to include representative selection of supportive statements above.</dd>
|
|
|
|
|
as we'd like to include representative selection of supportive statements above.</p>
|
|
|
|
|
</details>
|
|
|
|
|
|
|
|
|
|
<dt>Why is the case in Germany?</dt>
|
|
|
|
|
<details>
|
|
|
|
|
<summary>Why is the case in Germany?</summary>
|
|
|
|
|
|
|
|
|
|
<dd>Copyright infringement claims can be brought anywhere that distribution
|
|
|
|
|
<p>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>
|
|
|
|
|
the products at issue in those cases.</p>
|
|
|
|
|
</details>
|
|
|
|
|
{% endblock %}
|
|
|
|
|
|
|
|
|
|
<!-- LocalWords: Christoph Hellwig VMware vmkernel Linux's GPLv VMware's
|
|
|
|
|