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Frequently Asked Questions about Christoph Hellwig's VMware Lawsuit

Conservancy maintains this FAQ list regarding Christoph Hellwig's lawsuit against VMware in Germany over alleged GPL violations on Linux 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 email <info@sfconservancy.org>, but understand that we may often need to answer: We cannot comment on this while litigation is pending.

Who is the Plaintiff in the lawsuit?
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.
Are the court documents released?
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.
Who's funding this lawsuit?
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 GPL Compliance Project for Linux Developers.
Is this the Great Test Case of Combined / Derivative Works?
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.
Why must you file a lawsuit? Isn't there any other way to convince VMware to comply with GPL?

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.

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.

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.

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.

Thus, this lawsuit comes after years of negotiations by Conservancy to achieve compliance — 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.

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.

Can you explain further how VMware incorporated code from Linux into their kernel?
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:

[Diagram of Linux and VMware running kernels]

If you want to download the diagram, it's available in SVG (English), PNG (English), SVG (German), and PNG (German).

Have others issued statements of support about this action?
Various individuals and groups have publicly stated their support for Conservancy's and Hellwig's actions in this matter. They include:
I care about copyleft and the GPL. How can I help?
Conservancy needs . 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 your support. If you are an individual who supports copyleft and wants to see it defended, please donate now. And, if you make a public statement of support, please email the URL to <info@sfconservancy.org>, as we'd like to include representative selection of supportive statements above.
Why is the case in Germany?
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.
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