Hellwig Announces He Will Appeal VMware Ruling After Evidentiary Set Back in Lower Court

August 9, 2016

In a statement on his website, Christoph Hellwig announced today that he will appeal the ruling of the Hamburg District Court, which recently dismissed his case against VMware. As Christoph underscores in his statement, the ruling concerned German evidence law and the Court did not rule on the merits of the case. The ruling centered around German evidentiary rules related to documenting Christoph's contributions that appear in VMware's product. Christoph also published (in German and English) the Court's ruling 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.

Christoph stated on his website, I'm disappointed that the court didn't even consider the actual case of reusing the Linux code written by me, and I hope the Court of Appeal will investigate this central aspect of the lawsuit.

Conservancy publishes today its comparison analysis between Christoph's code and VMware's code. 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.

While these evidentiary points may be new to the German courts, they have been explored in US Federal Court. Conservancy previously successfully litigated as co-plaintiff with Erik Andersen over BusyBox. Many companies who settled, and the US Federal Court in their judgment against Westinghouse, ultimately accepted and agreed that Erik Andersen held copyrights in BusyBox.

The German civil legal system is not precedent-based. As such, this initial ruling creates no legally binding precedent. Our community continues our long journey to build definitive industry precedent regarding derivative and combined works under the GPL.

Reading the ruling, it's clear that VMware brought considerable resources to make every possible argument for dismissal, commented Karen Sandler, Conservancy's Executive Director. Christoph and Conservancy have a fraction of the resources for our enforcement efforts than VMware has at its disposal.

We ask everyone to become a Conservancy Supporter today to aid in our fight for software freedom through this appeal and other enforcement efforts worldwide.

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