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This seems to hinge on the legal nature of the interface between vmklinux (a Linux kernel module created by VMware) and ESXi (VMware's virtualization software).

This seems to hinge on the legal nature of the interface between vmklinux (a Linux kernel module created by VMware) and ESXi (VMware's virtualization software). If that interface separates two legally distinct works, then VMware is in the clear; if it doesn't, then VMware has created a derivative work of the Linux kernel and is in violation of the GPL. I don't know of any settled law about this question; IANAL and I haven't really looked. But I think the distinction that would make the most sense would not be based on anything technical, but on how an API is used in practice, and in particular on whether it's used by multiple unrelated parties. Ie, the same set of function calls can be either an irrelevant division within a single work, or a partition which separates independent works, depending on whether there're several different vendors/programs who call and implement them, or only one, and on whether the author of a new program who wanted to use that interface could reasonably do so.

rando3826 11y ago
> not be based on anything technical, but on how an API is used in practice Since it's an api, the "in practice" is some other piece of code, so I would still call it a technical issue.
belorn 11y ago
My IANAL impression of the courts is also that they don't want to make a judgement based on technical distinctions, but rather looks at how the work was used and what the intentions was. Did VMware distribute vmklinux without the linux kernel, and was it written with the intention to distribute it was a collected work. The word "arbitrary separation" also seems to cover intention rather than technical facts. Did VMware create the ESXi intention to bypass copyright, or was it create as a natural part in the development of VMware products.
- rdtsc 11y ago
  Wonder if they can "fix" this by sponsoring an open source project that would find some token "use" of the interface. Then court can point to it and say -- look, another use!
  - teddyh 11y ago
    Your usage of the word “token” shows that it can’t work.
caf 11y ago
You're missing that there's at least three works involved here: vmklinux, the Linux kernel, and the combination of the two as part of one product.

rando3826 11y ago

> not be based on anything technical, but on how an API is used in practice Since it's an api, the "in practice" is some other piece of code, so I would still call it a technical issue.

belorn 11y ago

My IANAL impression of the courts is also that they don't want to make a judgement based on technical distinctions, but rather looks at how the work was used and what the intentions was. Did VMware distribute vmklinux without the linux kernel, and was it written with the intention to distribute it was a collected work. The word "arbitrary separation" also seems to cover intention rather than technical facts. Did VMware create the ESXi intention to bypass copyright, or was it create as a natural part in the development of VMware products.

rdtsc 11y ago
Wonder if they can "fix" this by sponsoring an open source project that would find some token "use" of the interface. Then court can point to it and say -- look, another use!
- teddyh 11y ago
  Your usage of the word “token” shows that it can’t work.

caf 11y ago

You're missing that there's at least three works involved here: vmklinux, the Linux kernel, and the combination of the two as part of one product.