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March 5, 2015

Conservancy Announces Funding for GPL Compliance Lawsuit

VMware sued in Hamburg, Germany court for failure to comply with the GPL on Linux

Software Freedom Conservancy announces today Christoph Hellwig's lawsuit against VMware in the district court of Hamburg in Hamburg, Germany. This is 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 GNU General Public License version 2 (GPLv2), the license of Linux and many other Open Source and Free Software included in VMware's ESXi products.

Hellwig, a key Linux kernel developer and one of the earliest members of Conservancy's GPL Compliance Project for Linux Developers, has publicly denounced VMware's misuse of GPL-licensed code since 2007. In 2011, Conservancy discovered that VMware had failed to provide nor offer any source code for the version of BusyBox included in VMware's ESXi products (as required by BusyBox's license, GPLv2). Conservancy began in early 2012 negotiations with VMware to seek compliance on all GPL'd components in the ESXi project. Progress was slow through 2012 and 2013.

Meanwhile, Hellwig joined Conservancy's GPL Compliance for Linux Developers in late 2012. Hellwig assisted Conservancy in analysis of the non-compliant releases of ESXi that VMware provided. After studying these materials over a long period, it became apparent that VMware's current ESXi products infringed many of Hellwig's own copyrights, due to VMware's failure to comply with Linux's license, GPLv2.

During Hellwig's investigations, Conservancy continued to negotiate with VMware. Sadly, VMware's legal counsel finally informed Conservancy in 2014 that VMware had no intention of ceasing their distribution of proprietary-licensed works derived from Hellwig's and other kernel developers' copyrights, despite the terms of GPLv2. Conservancy therefore had no recourse but to support Hellwig's court action.

In addition to other ways VMware has not complied with the requirements of the GPL, Conservancy and Hellwig specifically assert that VMware has combined copyrighted Linux code, licensed under GPLv2, with their own proprietary code called “vmkernel” and distributed the entire combined work without providing nor offering complete, corresponding source code for that combined work under terms of the GPLv2. Hellwig is an extensive copyright holder in the portions of Linux that VMware misappropriated and used together in a single, new work without permission.

Hellwig's legal counsel in this German lawsuit is Till Jaeger of JBB Rechtsanwälte. Best known for his work representing Linux developer Harald Welte, Mr. Jaeger has brought several lawsuits regarding GPL violations. Both Conservancy and Hellwig are privileged and honored that he has agreed to serve as Hellwig's lawyer in these matters.

Both Hellwig and Conservancy do not at this time wish to comment further on the detailed facts of this lawsuit, as they relate to ongoing litigation. However, Conservancy will maintain a Frequently Asked Questions page regarding Hellwig's lawsuit against VMware and will update that FAQ list when our legal counsel deems such advisable.

Commenting generally on the issue of GPL enforcement, Bradley M. Kuhn, President and Distinguished Technologist of Conservancy, stated: The prevalence and sheer volume of GPL violations has increased by many orders of magnitude in the nearly two decades that I have worked on enforcement of the GPL. We must make a stand to show that individual developers and software freedom enthusiasts wish to uphold copyleft as a good strategy to achieve more access to source code and the right to modify, improve and share that source code. I ask that everyone support Conservancy in this action.

Grant Likely, Linux kernel developer who also serves as chair of the LF Technical Advisory Board, added: GPL licensing is a cornerstone part of Linux development. The ‘fair's fair’ nature of copyleft licensing is in large part why Linux has been overwhelmingly successful, and has created a huge ecosystem of companies benefiting from Linux. Our entire ecosystem is undermined when the sharing principles encoded in the GPL license are ignored. These principles ensure that companies and individuals can continue to share and collaborate on Linux to the benefit of everyone. By ignoring these principles, VMware risks damage to the very community on which it depends, and I look forward to this long standing complaint being swiftly resolved.

Conservancy views litigation as a last resort, and supports such action only after all other avenues have been exhausted. Conservancy and Christoph urge those who support this this action — and who support GPL compliance in general — to donate generously to Conservancy's GPL Compliance Project for Linux Developers. More information on Conservancy's campaign to fund this lawsuit can be found in the aforementioned FAQ list.

About Software Freedom Conservancy

Software Freedom Conservancy is a public charity that promotes, improves, develops and defends Free, Libre and Open Source software projects. Conservancy is home more than thirty software projects — including Git, Inkscape, Samba, Wine, Selenium, the Linux Compliance project, PyPy, and Sugar Labs — each supported by a dedicated community of volunteers, developers and users. Conservancy's projects include some of the most widely used software systems in the world across many application areas, including educational software deployed in schools around the globe, embedded software systems deployed in most consumer electronic devices, distributed version control developer tools, integrated library services systems, and widely used graphics and art programs. A full list of Conservancy's member projects is available. Conservancy provides these projects with the necessary infrastructure and not-for-profit support services to enable each project's communities to focus on what they do best: creating innovative software and advancing computing for the public's benefit.

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