Software Freedom Conservancy

Christoph Hellwig Continues VMware GPL Enforcement Suit in Germany

October 28, 2015

Software Freedom Conservancy is pleased to provide updated information regarding the ongoing GPL enforcement lawsuit for Linux, funded by Conservancy, that Christoph Hellwig has brought against VMware in Germany. Information about the suit is available on the FAQ page.

The lawsuit continues to progress. VMware has filed a statement of defense, in which they assert arguments for the dismissal of the action. Christoph, with the assistance of his lawyer Till Jaeger, has filed his response to these arguments. Unfortunately, VMware has explicitly asked for the filings not to be published and, accordingly, Conservancy has not been able to review either document. With the guidance of counsel, Christoph was able to provide Conservancy with a high-level summary of the filings from which we are able to provide this update. 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.

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 not an interoperability module, but rather an arbitrary separation of the Linux derived module from vmkernel. Specifically, vmklinux is nonfunctional with any non-ESX OS, and vmklinux is tied intimately to a specific version of ESXi. Vmklinux does not allow reuse of unmodified Linux drivers in binary or source form. Christoph further points out that if the Court allows proprietarization of an arbitrary split portion of GPL'd computer programs, it could allow redistributors to trivially bypass the strong copyleft terms found in the GPL. Finally, the response explains that vmkernel and vmklinux don't “communicate over an interface”, rather they run in the same process as a single computer program. Thus, VMK API, as used by vmklinux, is not an “interface” as set forth in the EU Directive 2009/24/EC.

To assist the public to easily verify these conclusions, Conservancy today makes available a git repository containing the publicly available VMware code. This Git repository contains an easier-to-browse version of VMware's incomplete source code releases. (Conservancy's FAQ about the lawsuit includes details on how to download this same software directly from VMware's site.)

The case continues, and remains an extremely important matter of principle for software freedom. The court hearing has been set for the first quarter of 2016. Conservancy will continue to release information as we receive it. Please support this work and stand up for the GPL by becoming a Conservancy Supporter today.

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