18 ms·

VMWare Taken to Court Over GPL Violation

664 points by emacsen 12y ago

jallmann 12y ago
Is there any information about why VMware thinks they are not bound by the GPL? Curious whether they have a technical justification, rather than simply being a blatant licensing violation.
- emacsen 12y ago
  This is just speculation but I suspect this is a matter of being caught with their pants down. They violated the GPL, but to comply with the license would mean that they'd have to release a lot of code that they don't want to release. From the page, it seems like there's been ongoing negotiation, so I am guessing there's been a lot of stalling.
  - rdtsc 12y ago
    > They violated the GPL, but to comply with the license would mean that they'd have to release a lot of code that they don't want to release. Well they could replace the component with proprietary (so there is not license to comply with), stop releasing the old version and then probably settle to pay fines or damages. In other words the legal outcome of GPL violations is not necessarily being forced to release the rest of the code as GPL.
    - MatthewWilkes 12y ago
      Probably have to pay damages to all their commercial users, too, given they charged them for a licence for something they had no rights to distribute.
    - MatthewWilkes 12y ago
      Probably have to pay damages to all their commercial users, too, given they charged them for a licence for something they had no rights to distribute.
    - emacsen 12y ago
      Right but they also didn't have rights to distribute the work. There will be issues of demonstrating damages, but you can't just say "Oh sure I violated your copyright... but now that you take me to court, I'll stop." and expect to get off without paying anything.
      - rdtsc 12y ago
        Well that's why I said they'll probably be forced to pay a fine or damages. They could for example look at number of licenses VMWare sold with the GPL code in it, then take a fraction of the profits from each or something like that. Stopping will probably just be another outcome unless they can come with some kind of agreement, like a separate commercial relicensed version of the GPL (but with multiple contributors that becomes a nightmare)
    - yaeger 12y ago
      >In other words the legal outcome of GPL violations is not necessarily being forced to release the rest of the code as GPL. True. I have met many people who didn't make that connection. They had this idea that if they found GPL code inside a commercial, closed source product, that it would be completely okay to start distributing this software themselves. Because in their minds, "GPL is in there, so the entire thing automatically becomes GPL licensed and everybody can distribute GPL licensed code and even charge money for it". I had to explain to them that is doesn't work that way. And if they found such a component, all they would have found was a GPL violation which they can report and which then would be an issue between the software's developers to resolve. Which may either end in them actually releasing their entire product under GPL or simply paying a fine. Out of those options I am pretty sure most would rather pay a fine than to give up their own IP to the GPL.
- notacoward 12y ago
  Don't know specifically, but these usually come down to hair-splitting over terms like "linking" and "derived work" and so on. I guess VMware think they can convince a judge that the way their code interacts with the Linux kernel does not cause it to fall under the GPL's source-publication requirement. On the other hand, I know Christoph enough to know how insanely smart and persistent he is. If he's confident enough in his conclusions to go forward with this, I wouldn't want to be on the other team.
  - filmgirlcw 12y ago
    And frankly, some of the hair-splitting differentiators need to be settled in court. It seems more obvious in compiled software (such as what VMWare is doing and with BusyBox), but if you think about the persistent issues that arise with what is the difference between "derived works" and "linked works" with web apps (even before JavaScript started taking over the client and server side), there are a lot of questions that I have long believed only a court could really settle to at least give a legal precedent.
- geofft 12y ago
  I'm not fully up-to-date on this case, but there is a bit of wiggle room on what counts as a derivative work, even in kernelspace. My favorite example is OpenAFS. Development of the AFS kernel module started in 1983, so the code is a decade older than Linux itself. So it's hard to argue that openafs.ko is a derivative work of Linux, and since it continues to run on several kernels other than Linux (Darwin, Solaris, NT, etc.) and the Linux-specific code is just glue code to make it work, it's not really obvious that it's become a derivative work of Linux. (OpenAFS is free software under the IBM Public License, which is a GPL-incompatible free software license, and the rightsholders will not relicense. The Linux kernel infrastructure assumes that any non-GPL kernel module is proprietary, for extra amusement.) Along the same lines is the kernel module for VMware Workstation, the desktop product that runs on Linux as well as Windows and Mac OS X. It doesn't predate Linux, so the argument is slightly less clear. VMware's vmkernel, as I understand it, is an amalgamation of VMware's hypervisor code (that predated ESX, and originated on Workstation) plus Linux. I think it conceptually started off as a Linux server with the existing kernel module, but both have evolved quite a bit. I think the remaining Linux parts mostly exist as hardware drivers, and VMware is providing the core kernel routines like scheduling and memory management and "world" management (equivalent to process management, but it's a hypervisor). I think that VMware's argument is that they did not start with Linux and add proprietary features to existing GPL'd code and call it proprietary; they started with their own code and linked in parts of Linux via well-defined interfaces, and they're happy to comply with the GPL for the parts that came from Linux, but they don't want to GPL the entirety of the ESXi kernel. It's worth noting that the concept of address space isn't a legal concept, just a technical one. We generally acknowledge that it's not a GPL violation to run proprietary applications on Linux, even applications that use Linux-specific interfaces like cgroups and epoll and signalfd and all that good stuff. Is this simply because the Linux kernel copyright explicitly disclaims virality to userspace, or because there's some fundamental legal reason why userspace and kernelspace are far enough apart? Can two components in ring 0 also be "far enough apart"?
  - detaro 12y ago
    From the wording in the link it sounds like they include modified GPL code and don't publish that, not that they are expected to open-source ESXi (or whatever it is called right now) entirely: > 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).
tw04 12y ago
I'm surprised it took this long. I can't really blame them, after 15 years of ignoring the GPL, they probably figured nobody would ever come up with the financial resources to actually go after them. This is going to take years to come to a resolution and millions and millions of dollars in lawyers fees.
- emacsen 12y ago
  I agree. If you want to help the little guy here, then pleased donate to fund the lawsuit: http://sfconservancy.org/linux-compliance/vmware-lawsuit-appeal.html http://sfconservancy.org/linux-compliance/vmware-lawsuit-app...
  - jra_samba 12y ago
    Please help ! There's currently a $50k challenge match going on so anything you donate will be doubled. Disclaimer - I'm on the Board of Directors of Conservancy.
    - tw04 12y ago
      Your ticker doesn't appear to be updating? Maybe that's by design?
      - jra_samba 12y ago
        I'm not the web master, I'll ping him.
      - jra_samba 12y ago
        It's updating now, although I think it's manual, not automatic.
    - miles 12y ago
      Can you guys please add some more donation options like Amazon Payments or Bitcoin?
  - rplnt 12y ago
filmgirlcw 12y ago
So this could be really interesting from a precedent standpoint because it could help clarify the legality of the GPL in various contexts in the court. Whatever you think about the GPL (and I'm for open source and open licenses but I do have issues with GPL v3, but that's just me), this has been necessary, I believe, in order for GPL and OSS projects to move forward.
- lclarkmichalek 12y ago
  I'm not sure it will be that groundbreaking; this seems to be yet another busybox violation litigated in Germany, of which we have had several already.
  - cjbprime 12y ago
    It started out that way, but as I understand the release materials here, this is now about Hellwig's copyright on core kernel code (e.g. the VFS), which VMWare has integrated into their product. I wonder what they're thinking. At least with nVidia there's a plausible sounding defense that goes like "hey, we just wrote a shim to load this platform independent code we already had lying around, so our platform independent code can stay proprietary because it's not a derived work of Linux". I don't think this position is correct, but I can see that it at least requires a court case to adjudicate. But in VMWare's case, it appears that they took the Linux kernel and modified it to make their own vmkernel. I can't see how you make an argument (that their vmkernel is not a derived work of Linux) that takes more than ten seconds to soundly defeat.
    - nitrogen 12y ago
      I've seen it argued on HN that the GPL's definition of a derivative work differs from the legal definition, and if you never distribute the GPL'd code, you aren't bound by it. Thus, one could write kernel drivers, which (it was argued) are not derivative works under copyright, and be safe as long as the kernel is not redistributed by the same entity.
      - 12y ago
chubot 12y ago
Good, I donated here: http://sfconservancy.org/linux-compliance/vmware-lawsuit-appeal.html http://sfconservancy.org/linux-compliance/vmware-lawsuit-app...
- dordoka 12y ago
  Donated as well.
- wosos 12y ago
  Same here
- deleted 12y ago
  [deleted]
- firepoet 12y ago
  Donated.
- cbetz 12y ago
  I donated too. If you're sitting on the side lines: remember that that the Software Freedom Conservancy is a non-profit while VMware is multi-billion dollar corporate entity with very deep pockets and high-priced lawyers.
stephengillie 12y ago
As a VMWare customer, this makes me consider their ethics. If they're unethical, shouldn't we look into switching away from their product? I'm not aware of many competitors in their market space - Hyper-V certainly, but that's less of an option for some. Short of rearchitecting our service as a series of containers, what action can conscientious corporate leaders take?
- tw04 12y ago
  Well, the go-to is generally considered Redhat with their RHEV product line. There are a plethora of other options out there, but if you're looking for an open source path with enterprise support they are generally candidate #1. Oracle has an option but... ya. Citrix Xenserver would be the other major player.
  - raincom 12y ago
    VMWare has more than just ESXi: managing ESXi, HA and DRS, vmotion, etc. Open source lacks what VMWare offers to enterprise customers. Not every company can develop tools to manage hypervisors (say, kvm) like Google does. Openstack is trying to solve this problem; but so far, openstack seems to be more of marketing, less of success stories.
    - rodgerd 12y ago
      > managing ESXi, HA and DRS, vmotion, etc. These are all part of oVirt/RHEV.
  - jsmeaton 12y ago
    Disclaimer; I'm not a sysadmin. Data point below is second hand knowledge from helping to track down issues with the ops team. Our company started with RHEV and ran into lots and lots of issues with it. There were compatibility issues between our VM infrastructure and SAN (firmware problems on one side, I forget which). Guests would just lock up all the time. There were other problems, but I'm not familiar with them. We've had little to no problem since migrating to VMWare.
vially 12y ago
Here's another story regarding GPL violations (this time by Allview): https://groups.google.com/forum/#!topic/linux-sunxi/78MbtijKraY https://groups.google.com/forum/#!topic/linux-sunxi/78MbtijK...
Stratoscope 12y ago
Can we correct the misspelled company name in the title? (It's not "VMWare".)
miles 12y ago
From 2008: VMware joins Linux Foundation--while reportedly violating the GPL http://www.cnet.com/news/vmware-joins-linux-foundation-while-reportedly-violating-the-gpl/ http://www.cnet.com/news/vmware-joins-linux-foundation-while...
spullara 12y ago
Any litigation of the GPL is more than likely more dangerous for the GPL than it is for the companies. A relaxing of the understood requirements of using and distributing GPL code could cause an avalanche of fall out from formerly protected code becoming less protected. If I was this organization I would only risk a lawsuit of something that would have profound positive consequences for open source. VMware's risk is relatively small vs the risk that the GPL's viral component is weakened.
- camperman 12y ago
  You don't litigate the GPL in court as such. You litigate a copyright violation. Christoph is going to go to the judge and say the German equivalent of "your honor, VMWare is distributing my copyrighted work without permission. Make it stop please." VMWare then has two choices: either it says "but we have permission, a license to do so" whereupon it needs to obey the terms said license, or it needs to immediately cease distributing Christoph's copyrighted work.
- the8472 12y ago
  There have been several rulings in germany in favor of the GPL and its enforceability[1][2][3] (pages in german), so these aren't exactly untested waters. [1] http://www.ifross.org/sites/default/files/130618%20Urteil%20Fantec.pdf http://www.ifross.org/sites/default/files/130618%20Urteil%20... [2] http://www.it-recht-kanzlei.de/Urteil/2767/LG_Frankfurt_6.Zivilkammer/2-06_O_22406_26_O_22406/Kosten-Schadensersatz_bei_GPL-Verstoss.html http://www.it-recht-kanzlei.de/Urteil/2767/LG_Frankfurt_6.Zi... [3] http://www.internetrecht-rostock.de/urheberrecht23-gpl-lg-muenchen.htm http://www.internetrecht-rostock.de/urheberrecht23-gpl-lg-mu...
- ngoldbaum 12y ago
  There is strong precedent in German courts for enforcing GPL violations. Probably stronger than in any other country's legal system. The Software Freedom Conservancy is probably the organization least likely to screw up the decision to enforce the GPL through the courts.
  - yaeger 12y ago
madez 12y ago
It's a german lawyer suing in a german court for a german client. How can I donate in EUR without the money going through USD? Edit: "[The USD] is our currency, but it's your problem.", John Bowden Connally, Jr. Obviously here are people who like it that way.
- the8472 12y ago
  If your country participates in SWIFT a wire transfer should be possible, see http://sfconservancy.org/donate/ http://sfconservancy.org/donate/
  - madez 12y ago
    Thanks! I wrote an email to the given address for details on how to donate.
wongarsu 12y ago
If I'm not mistaken this is the first instance of a kernel developer participating in a GPL lawsuit. That could bring a whole new era of GPL lawsuits.
- AimHere 12y ago
  It's not the first instance. Harald Welte, a member of FSF-Europe and an IPtables contributor, did spend a lot of time enforcing the GPL against violators in Germany, as the driving force behind the late gpl-violations.org.
- JoshTriplett 12y ago
  The Software Freedom Conservancy did recently announce that they've started working with kernel developers who are willing to have SFC enforce the GPL on their behalf, so that they can directly work on Linux rather than just busybox.
dmitrygr 12y ago
I very much doubt the accuracy of their claims that vmkernel is largely a copy of linux (http://sfconservancy.org/linux-compliance/linux-vs-vmkernel_en.png http://sfconservancy.org/linux-compliance/linux-vs-vmkernel_...) Mostly since in many of those drivers, it performs better than linux, but also because vmware did not hire idiots, (and non-idiots know not to ever use GPL code). Source: worked there a while ago.
- toomuchtodo 12y ago
  We'll find out in discovery.
- ghaff 12y ago
  The claim, I believe, is that vmkernel uses Linux in a way that is not permissible under the GPL. At least that was the issue as people understood it the last time this came up: http://www.cnet.com/news/vmware-and-the-gpl-round-two/ http://www.cnet.com/news/vmware-and-the-gpl-round-two/
- JoshTriplett 12y ago
  Go read https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ for more of the details, including copied source files that contain Linux copyright headers and GPL notices at the top.
- rosser 12y ago
  That diagram doesn't suggest that vmkernel is "largely a copy" of anything. It specifically alleges "modified Linux code".
- froseph 12y ago
  The wayback machine* has Zachary Amsden's opinion in 2007 why the vmkernel (and other components) are not in violation of GPL. It's an interesting read. He concludes: > 1) There is no argument that depending on a Linux console OS makes any part of ESX subject to GPL that is not already opene sourced. We have open sourced those GPL components of the system which we have modified and given the changes back to the community. > 2) There is no argument that loading the vmkernel by bootstrapping it with Linux makes the vmkernel subject to GPL. In fact, in the funniest counter-example, Linux itself used to be boostrapped under MS-DOS by running the command loadlin (note the 7 character name, since DOS would not allow enough characters for load-linux). > 3) There is no argument that distributing GPL binary drivers makes any piece of software distributed with them or using them subject to GPL. In fact the converse appears to be explicitly stated in the GPL itself. * http://web.archive.org/web/20080105204946/http://www.venturecake.com/the-vmware-house-of-cards/ http://web.archive.org/web/20080105204946/http://www.venture... updated for formatting.
wil421 12y ago
What could a German court do to VMWare? I am wondering if this is a similar situation to where France wanted to sue Google[2] and more recently Fox News[1]. Not trying to be a naysayer, but I wonder if this will accomplish anything? (since the case is in Germany and not the US where VMWare is incorporated) [1]http://www.theguardian.com/world/2015/feb/12/paris-lawsuit-fox-news-reporting-no-go-zones-non-muslims http://www.theguardian.com/world/2015/feb/12/paris-lawsuit-f... [2]http://www.themarysue.com/france-sues-google-autocomplete/ http://www.themarysue.com/france-sues-google-autocomplete/
- uniformlyrandom 12y ago
  > It appears that Paris would not be able to recoup funds from Fox News in the event of any judgment in its favor, based on a 2010 law that prohibits US courts from enforcing any foreign judgement for defamation except in narrow circumstances. this is dot a defamation case.
  - wil421 12y ago
    So you're saying they would have jurisdiction over a US company in some cases? Just not a defamation one. From my edit [2]http://www.themarysue.com/france-sues-google-autocomplete/ http://www.themarysue.com/france-sues-google-autocomplete/ "In any event, Google is a U.S.-based company, and isn’t compelled to operate under foreign laws. Google’s autocomplete practices are as subject to French law as they are to Japanese law, which is to say they are not subject at all."
    - bad_user 12y ago
      That's a shady article and source. If Google has offices in France, and they probably do, then Google must respect French laws. A country has sovereignty over its territory, which means that if you want to operate under it, you must respect its laws. Don't know what happened with that lawsuit you mentioned, but if Google won, then it must have been because it was a stupid lawsuit.
      - 12y ago
api 12y ago
Good. Free as in freedom does not necessarily mean free as in beer, nor does it mean you can just steal peoples' work without credit. OSS does not mean "public domain" unless that's explicitly stated.
JoshTriplett 12y ago
LWN has a very clear explanation of just how clear-cut this is: https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ In particular, this isn't just a question of whether a kernel module is a derived work of the kernel. Apparently VMWare has copied code from the Linux kernel, with GPLed headers on top, and compiled that code directly into some of their code.
- tbrownaw 12y ago
  It sounded to me like they have two things: one that's proprietary and the other that has modified kernel code in it.
  - geofft 12y ago
    Interesting. My reading is that there are two components. The first is the Linux bootstrap, which they are entirely in compliance for. The second is vmkernel, which includes some GPL code whose source they're releasing, but vmkernel as a whole is not GPL; this is almost certainly out of compliance (but also easily fixable), unless they're doing something to isolate "vmkdrivers" from the rest of vmkernel. (Can I legally port, say, the GPLv2 ext4 filesystem driver from Linux to a non-GPL OS like OS X? Can Apple pick up that port, and distribute ext4.kext and its source in OS X, without putting the entire xnu kernel under GPLv2?) The harder and fuzzier part is that the ESX boot process works by asking Linux to "load" vmkernel, using the vmklinux helper module. If this is in the sense of loading a kernel module, it's (mostly) clearly wrong. If this is in the sense of loading a userspace app (as if vmklinux was a binfmt module, and vmkernel was a non-ELF executable), then this is (mostly) clearly okay. But it's doing neither of those. It's loading vmkernel above Linux, making the Linux process the first world, analogous to a Xen domU. So this isn't userspace, but it's also arguably a new address space. Neither of which are legal concepts per se, so it's hard to tell where this lies. This fuzzy part is neither the first component (Linux / "vmnix" / the bootstrap) nor the second (vmkernel), but the way in which they interact and are designed around each other. This itself might be an infringement, even if the first is not infringing, and the second is fixed.
    - 12y ago
huhtenberg 12y ago
Busybox strikes again. I worked for a company that was on a receiving end of a similar GPL legal action (though not busybox-based and not from SF Conservancy). I'll tell you what will happen next. VMWare will (a) write a drop-in in-house replacement for busybox (b) they will show that busybox is not an principal part for ESXi and that it can be easily swapped for the in-house replacement. At this point they will release the busybox sources, potentially including the in-house version, but not under GPL. This will hinder the lawsuit, but it will keep dragging on until everyone gets tired of its pointlessness and then it will get quietly dismissed to the mutual satisfaction of both involved parties. The thing is that it's not that VMWare is evil or unethical. It's just that this GPL thing doesn't even register on their legal radar, so it never percolates down to engineering. Similarly any concerns raised by engineering are never taken seriously by the legal council. It's really as simple as that.
- tie_ 12y ago
  > It's just that this GPL thing doesn't even register on their legal radar... Any engineer competent enough to incorporate Busybox into another product would know what GPL is, and what are the most basic implications that it leads to. I find it much easier to believe that VMWare as a whole was explicitly aware of the licensing situation. It remains to be seen what was their plan B, if there ever was one.
- AceJohnny2 12y ago
  A non-GPL Busybox alternative like Toybox? http://www.landley.net/toybox/about.html http://www.landley.net/toybox/about.html
- shmerl 12y ago
  Or you know, they can stop being jerks and release sources for the code they derived from the GPLed one. > It's just that this GPL thing doesn't even register on their legal radar It should register. > Similarly any concerns raised by engineering are never taken seriously by the legal council. Not in any serious company to my experience. Being so lax on legal matters for such company shows very low level of their management's professionalism.
paulhauggis 12y ago
The GNU license doesn't sound very "free" to me. It's strange that the owners of GNU code think that all additions to their code should rightly be released to the public (even if they never wrote the additions). The original code is still "free" for the world to use, so there really isn't anything being taken.
- s73v3r 12y ago
  If you don't like their conditions for using it, then don't fucking use it. Why do you feel entitled to use other people's work without adhering to their conditions?
  - MaulingMonkey 12y ago
    > Why do you feel entitled to use other people's work without adhering to their conditions? I don't see where paulhauggis is claiming he's entitled to use other people's work without adhering to their conditions. Can you point out that claim explicitly for me? (edit: removed a stray nonsensical "it" for clarity) > If you don't like their conditions for using it, then don't fucking use it. This is what I generally do when it comes to GPLed libraries. Even closed source APIs generally grant me more "freedom" as a developer in how I redistribute my own programs invoking those APIs. But hey, it's their right to release GPLed software. I make use of some GPLed software (generally only as a user, not a developer) and thank their developers for their contributions. ...but I don't think it's outrageous to find their definition of "free" a little odd, I get why it can be hard to follow their line of reasoning, and don't see the harm in trying to dig into the reasoning behind using the GPL over, say, a more permissive license such as MIT. Personally, I'm more inclined to release under permissive licenses - but this is your chance to convince paulhauggis of the merits of the former, no?
  - paulhauggis 12y ago
    This is exactly why I don't use any GNU code in any of my projects. I am just sick of people claiming it is "free" when it's actually a lure to get companies to use the code for free and then get bitten in the ass in the end by having to release proprietary code. Why is it that whenever I bring up this point, the words "theft" and "stealing" are used by many. However, when we are talking about copyright infringement, I am instantly corrected when I try to use those words to describe essentially the exact same practice?? (people here have even said it is their 'right' to freely copy copyrighted material). "If you don't like their conditions for using it, then don't fucking use it. Why do you feel entitled to use other people's work without adhering to their conditions?" So, it's not about giving and happiness anymore and happiness is it? Giving out software for free and then getting angry and going after someone in court when they don't use it to your liking is not freedom in my mind. I release all of my software under the BSD license. It's true freedom because I don't care what you do with it. It's a true unselfish act. The GNU is just Stallman's attempt to destroy the commercial software industry, tie up our courts with ridiculous GNU violations, and essentially socialize it (a few years back, he had goals of the GNU and one of them is to have a 'compliance officer' mandated by the government in each company). I'm glad most of these attempts have failed.
RexRollman 12y ago
It feels weird not to read about this on Groklaw.
- spacemanmatt 12y ago
  It feels less informed. HN covers tech to a fine point but Groklaw, IMO, remains untouched for its legal coverage.
sswaner 12y ago
I support Hellwig and the Conservancy in their claim, but I see an unfortunate consequence: This further hinders corporate adoption of open source software. This lawsuit reinforce the corporate legal mindset that "use of open source invites litigation...".
- dopamean 12y ago
  > This lawsuit reinforce the corporate legal mindset that "use of open source invites litigation...". If this causes trained corporate attorneys to think that the use of open source software invites litigation then they should probably not be attorneys. If software comes with a license then follow the rules of the license. Is that really that hard to do? If you don't understand the terms of the license then that's what the lawyers are for.
- Daishiman 12y ago
  We are way past the point where that sort of advocacy is necessary. Companies need to understand that compliance is relevant too. VmWare has no excuse for this.
- yarrel 12y ago
  No it doesn't. If there's a ruling it will create precisely the kind of clarity corporate users want. If there's a settlement it will show that free software developers are reasonable. Either way, it will encourage corporations who are concerned about using free software to educate themselves rather than rely on FUD.
- belorn 12y ago
  If licenses don't get enforced, "free" game engines like Unreal can't operate. You get the world where the only available code which do not require long meetings, massive upfront cash, lawyers and NDA's are those tiny exceptions which are given under public domain. That is not a future anyone should wish onto the software industry.
- lazylizard 12y ago
  use of closed source without payment invites litigation? the same with open source then?
tinco 12y ago
I'm no lawyer, but isn't the most exciting fact about this lawsuit that it takes place in Germany? That means no settlements or other silly American business. Just two parties making their case in front of a judge, and the judge deciding who is right and what the repercussions are.
- slapshot 12y ago
  Surely, two parties can settle a civil case in Germany. Otherwise every dispute between two neighbors over a fence would end up taking up the court's time when they are perfectly capable of agreeing to a solution. Two seconds of Google research suggest that settlements are possible: https://books.google.com/books?id=zZoibg8oR1QC&pg=PA132&lpg=PA132&dq=germany+out+of+court+settlement&source=bl&ots=4_lrCM9oBO&sig=symVw-nXxvPwJsLa_sKmbDx_f4k&hl=en&sa=X&ei=a7z4VMigII_ZoATM64HQBQ&ved=0CCoQ6AEwBDgK#v=onepage&q=germany%20out%20of%20court%20settlement&f=false https://books.google.com/books?id=zZoibg8oR1QC&pg=PA132&lpg=... You might mean plea bargaining, which is more of a US-centric feature, but that's only applicable to criminal cases. This is a civil suit between two parties.
  - Tomte 12y ago
    We also have plea bargaining, in various forms.
faragon 12y ago
VMWare: stop this and release the code on GPL v2. It is just old code. And also, recognize the mistake. Period.
- jlawer 12y ago
  This is not old code. This is the kernel of ESXi 5.5 (Their current product) and its highly likely that ESXi 6.0 has the same problem. This is not old code, it is the heart of their product offerings.
  - bonzini 12y ago
    It's not the heart of their product offerings. The heart is vCenter, the kernel is only a small piece. Citrix has no problem with making Xen free software.
    - jlawer 12y ago
      I disagree. When you think of all the functions the vmware hypervisor has a range of features where it is quite far ahead of the competition including Fault Tolerance. vSphere is the management interface, its telling the vmkernel to do things, but the vmkernels are able to do a lot of work without the vsphere service being available (HA, etc). VMware basically invented the modern x86 virtualisation environment, and there is still a lot of value in saying that they do it best as they have the most experience. Make that a commodity and I don't think you have the industry leader anymore.
jorgecastillo 12y ago
Serves them right for not using permissively licensed code!
krick 12y ago
I didn't bother to read it all, but all that stuff makes me feel apathy. I very much believe, that VMWare did something wrong. Maybe even illegal. I believe they deserve to be punished for that. But what I see here doesn't look like punishment at all. What does that solve? Whom does it help? For VMWare it's just professional risk, they have their lawyers, they know their business. So even if it ends up extremely bad for them (which I doubt) it will be just "nasty day at work" and they'll recover somehow. And sure as hell it won't be tragic for EMC (if they notice it at all). The "victim" won't be rewarded as well, because "victims" are ordinary Linux-kernel contributors scattered over the world. So what the whole thing really is: gathering money to feed some lawyers, who might not look as bad as VMWare when you read all that story, but in fact are far less useful for society than even VMWare, who is supposed to be the evil guy here. It just makes me think how pointless all that stuff is. It's depressing.
pbowyer 12y ago
Once the Conservancy has sorted out this GPL situation, perhaps they can investigate the legality of the commercial GPL-using ecosystem around WordPress.

664 points by emacsen 12y ago

Is there any information about why VMware thinks they are not bound by the GPL? Curious whether they have a technical justification, rather than simply being a blatant licensing violation.

emacsen 12y ago
This is just speculation but I suspect this is a matter of being caught with their pants down. They violated the GPL, but to comply with the license would mean that they'd have to release a lot of code that they don't want to release. From the page, it seems like there's been ongoing negotiation, so I am guessing there's been a lot of stalling.
- rdtsc 12y ago
  > They violated the GPL, but to comply with the license would mean that they'd have to release a lot of code that they don't want to release. Well they could replace the component with proprietary (so there is not license to comply with), stop releasing the old version and then probably settle to pay fines or damages. In other words the legal outcome of GPL violations is not necessarily being forced to release the rest of the code as GPL.
  - MatthewWilkes 12y ago
    Probably have to pay damages to all their commercial users, too, given they charged them for a licence for something they had no rights to distribute.
  - MatthewWilkes 12y ago
    Probably have to pay damages to all their commercial users, too, given they charged them for a licence for something they had no rights to distribute.
  - emacsen 12y ago
    Right but they also didn't have rights to distribute the work. There will be issues of demonstrating damages, but you can't just say "Oh sure I violated your copyright... but now that you take me to court, I'll stop." and expect to get off without paying anything.
    - rdtsc 12y ago
      Well that's why I said they'll probably be forced to pay a fine or damages. They could for example look at number of licenses VMWare sold with the GPL code in it, then take a fraction of the profits from each or something like that. Stopping will probably just be another outcome unless they can come with some kind of agreement, like a separate commercial relicensed version of the GPL (but with multiple contributors that becomes a nightmare)
  - yaeger 12y ago
    >In other words the legal outcome of GPL violations is not necessarily being forced to release the rest of the code as GPL. True. I have met many people who didn't make that connection. They had this idea that if they found GPL code inside a commercial, closed source product, that it would be completely okay to start distributing this software themselves. Because in their minds, "GPL is in there, so the entire thing automatically becomes GPL licensed and everybody can distribute GPL licensed code and even charge money for it". I had to explain to them that is doesn't work that way. And if they found such a component, all they would have found was a GPL violation which they can report and which then would be an issue between the software's developers to resolve. Which may either end in them actually releasing their entire product under GPL or simply paying a fine. Out of those options I am pretty sure most would rather pay a fine than to give up their own IP to the GPL.
notacoward 12y ago
Don't know specifically, but these usually come down to hair-splitting over terms like "linking" and "derived work" and so on. I guess VMware think they can convince a judge that the way their code interacts with the Linux kernel does not cause it to fall under the GPL's source-publication requirement. On the other hand, I know Christoph enough to know how insanely smart and persistent he is. If he's confident enough in his conclusions to go forward with this, I wouldn't want to be on the other team.
- filmgirlcw 12y ago
  And frankly, some of the hair-splitting differentiators need to be settled in court. It seems more obvious in compiled software (such as what VMWare is doing and with BusyBox), but if you think about the persistent issues that arise with what is the difference between "derived works" and "linked works" with web apps (even before JavaScript started taking over the client and server side), there are a lot of questions that I have long believed only a court could really settle to at least give a legal precedent.
geofft 12y ago
I'm not fully up-to-date on this case, but there is a bit of wiggle room on what counts as a derivative work, even in kernelspace. My favorite example is OpenAFS. Development of the AFS kernel module started in 1983, so the code is a decade older than Linux itself. So it's hard to argue that openafs.ko is a derivative work of Linux, and since it continues to run on several kernels other than Linux (Darwin, Solaris, NT, etc.) and the Linux-specific code is just glue code to make it work, it's not really obvious that it's become a derivative work of Linux. (OpenAFS is free software under the IBM Public License, which is a GPL-incompatible free software license, and the rightsholders will not relicense. The Linux kernel infrastructure assumes that any non-GPL kernel module is proprietary, for extra amusement.) Along the same lines is the kernel module for VMware Workstation, the desktop product that runs on Linux as well as Windows and Mac OS X. It doesn't predate Linux, so the argument is slightly less clear. VMware's vmkernel, as I understand it, is an amalgamation of VMware's hypervisor code (that predated ESX, and originated on Workstation) plus Linux. I think it conceptually started off as a Linux server with the existing kernel module, but both have evolved quite a bit. I think the remaining Linux parts mostly exist as hardware drivers, and VMware is providing the core kernel routines like scheduling and memory management and "world" management (equivalent to process management, but it's a hypervisor). I think that VMware's argument is that they did not start with Linux and add proprietary features to existing GPL'd code and call it proprietary; they started with their own code and linked in parts of Linux via well-defined interfaces, and they're happy to comply with the GPL for the parts that came from Linux, but they don't want to GPL the entirety of the ESXi kernel. It's worth noting that the concept of address space isn't a legal concept, just a technical one. We generally acknowledge that it's not a GPL violation to run proprietary applications on Linux, even applications that use Linux-specific interfaces like cgroups and epoll and signalfd and all that good stuff. Is this simply because the Linux kernel copyright explicitly disclaims virality to userspace, or because there's some fundamental legal reason why userspace and kernelspace are far enough apart? Can two components in ring 0 also be "far enough apart"?
- detaro 12y ago
  From the wording in the link it sounds like they include modified GPL code and don't publish that, not that they are expected to open-source ESXi (or whatever it is called right now) entirely: > 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).

tw04 12y ago

I'm surprised it took this long. I can't really blame them, after 15 years of ignoring the GPL, they probably figured nobody would ever come up with the financial resources to actually go after them. This is going to take years to come to a resolution and millions and millions of dollars in lawyers fees.

emacsen 12y ago
I agree. If you want to help the little guy here, then pleased donate to fund the lawsuit: http://sfconservancy.org/linux-compliance/vmware-lawsuit-appeal.html http://sfconservancy.org/linux-compliance/vmware-lawsuit-app...
- jra_samba 12y ago
  Please help ! There's currently a $50k challenge match going on so anything you donate will be doubled. Disclaimer - I'm on the Board of Directors of Conservancy.
  - tw04 12y ago
    Your ticker doesn't appear to be updating? Maybe that's by design?
    - jra_samba 12y ago
      I'm not the web master, I'll ping him.
    - jra_samba 12y ago
      It's updating now, although I think it's manual, not automatic.
  - miles 12y ago
    Can you guys please add some more donation options like Amazon Payments or Bitcoin?
- rplnt 12y ago

filmgirlcw 12y ago

So this could be really interesting from a precedent standpoint because it could help clarify the legality of the GPL in various contexts in the court. Whatever you think about the GPL (and I'm for open source and open licenses but I do have issues with GPL v3, but that's just me), this has been necessary, I believe, in order for GPL and OSS projects to move forward.

lclarkmichalek 12y ago
I'm not sure it will be that groundbreaking; this seems to be yet another busybox violation litigated in Germany, of which we have had several already.
- cjbprime 12y ago
  It started out that way, but as I understand the release materials here, this is now about Hellwig's copyright on core kernel code (e.g. the VFS), which VMWare has integrated into their product. I wonder what they're thinking. At least with nVidia there's a plausible sounding defense that goes like "hey, we just wrote a shim to load this platform independent code we already had lying around, so our platform independent code can stay proprietary because it's not a derived work of Linux". I don't think this position is correct, but I can see that it at least requires a court case to adjudicate. But in VMWare's case, it appears that they took the Linux kernel and modified it to make their own vmkernel. I can't see how you make an argument (that their vmkernel is not a derived work of Linux) that takes more than ten seconds to soundly defeat.
  - nitrogen 12y ago
    I've seen it argued on HN that the GPL's definition of a derivative work differs from the legal definition, and if you never distribute the GPL'd code, you aren't bound by it. Thus, one could write kernel drivers, which (it was argued) are not derivative works under copyright, and be safe as long as the kernel is not redistributed by the same entity.
    - 12y ago

chubot 12y ago

Good, I donated here: http://sfconservancy.org/linux-compliance/vmware-lawsuit-appeal.html http://sfconservancy.org/linux-compliance/vmware-lawsuit-app...

dordoka 12y ago
Donated as well.
wosos 12y ago
Same here
deleted 12y ago
[deleted]
firepoet 12y ago
Donated.
cbetz 12y ago
I donated too. If you're sitting on the side lines: remember that that the Software Freedom Conservancy is a non-profit while VMware is multi-billion dollar corporate entity with very deep pockets and high-priced lawyers.

stephengillie 12y ago

As a VMWare customer, this makes me consider their ethics. If they're unethical, shouldn't we look into switching away from their product? I'm not aware of many competitors in their market space - Hyper-V certainly, but that's less of an option for some. Short of rearchitecting our service as a series of containers, what action can conscientious corporate leaders take?

tw04 12y ago
Well, the go-to is generally considered Redhat with their RHEV product line. There are a plethora of other options out there, but if you're looking for an open source path with enterprise support they are generally candidate #1. Oracle has an option but... ya. Citrix Xenserver would be the other major player.
- raincom 12y ago
  VMWare has more than just ESXi: managing ESXi, HA and DRS, vmotion, etc. Open source lacks what VMWare offers to enterprise customers. Not every company can develop tools to manage hypervisors (say, kvm) like Google does. Openstack is trying to solve this problem; but so far, openstack seems to be more of marketing, less of success stories.
  - rodgerd 12y ago
    > managing ESXi, HA and DRS, vmotion, etc. These are all part of oVirt/RHEV.
- jsmeaton 12y ago
  Disclaimer; I'm not a sysadmin. Data point below is second hand knowledge from helping to track down issues with the ops team. Our company started with RHEV and ran into lots and lots of issues with it. There were compatibility issues between our VM infrastructure and SAN (firmware problems on one side, I forget which). Guests would just lock up all the time. There were other problems, but I'm not familiar with them. We've had little to no problem since migrating to VMWare.

vially 12y ago

Here's another story regarding GPL violations (this time by Allview): https://groups.google.com/forum/#!topic/linux-sunxi/78MbtijKraY https://groups.google.com/forum/#!topic/linux-sunxi/78MbtijK...

Stratoscope 12y ago

Can we correct the misspelled company name in the title? (It's not "VMWare".)

miles 12y ago

From 2008: VMware joins Linux Foundation--while reportedly violating the GPL http://www.cnet.com/news/vmware-joins-linux-foundation-while-reportedly-violating-the-gpl/ http://www.cnet.com/news/vmware-joins-linux-foundation-while...

spullara 12y ago

Any litigation of the GPL is more than likely more dangerous for the GPL than it is for the companies. A relaxing of the understood requirements of using and distributing GPL code could cause an avalanche of fall out from formerly protected code becoming less protected. If I was this organization I would only risk a lawsuit of something that would have profound positive consequences for open source. VMware's risk is relatively small vs the risk that the GPL's viral component is weakened.

camperman 12y ago
You don't litigate the GPL in court as such. You litigate a copyright violation. Christoph is going to go to the judge and say the German equivalent of "your honor, VMWare is distributing my copyrighted work without permission. Make it stop please." VMWare then has two choices: either it says "but we have permission, a license to do so" whereupon it needs to obey the terms said license, or it needs to immediately cease distributing Christoph's copyrighted work.
the8472 12y ago
There have been several rulings in germany in favor of the GPL and its enforceability[1][2][3] (pages in german), so these aren't exactly untested waters. [1] http://www.ifross.org/sites/default/files/130618%20Urteil%20Fantec.pdf http://www.ifross.org/sites/default/files/130618%20Urteil%20... [2] http://www.it-recht-kanzlei.de/Urteil/2767/LG_Frankfurt_6.Zivilkammer/2-06_O_22406_26_O_22406/Kosten-Schadensersatz_bei_GPL-Verstoss.html http://www.it-recht-kanzlei.de/Urteil/2767/LG_Frankfurt_6.Zi... [3] http://www.internetrecht-rostock.de/urheberrecht23-gpl-lg-muenchen.htm http://www.internetrecht-rostock.de/urheberrecht23-gpl-lg-mu...
ngoldbaum 12y ago
There is strong precedent in German courts for enforcing GPL violations. Probably stronger than in any other country's legal system. The Software Freedom Conservancy is probably the organization least likely to screw up the decision to enforce the GPL through the courts.
- yaeger 12y ago

madez 12y ago

It's a german lawyer suing in a german court for a german client. How can I donate in EUR without the money going through USD? Edit: "[The USD] is our currency, but it's your problem.", John Bowden Connally, Jr. Obviously here are people who like it that way.

the8472 12y ago
If your country participates in SWIFT a wire transfer should be possible, see http://sfconservancy.org/donate/ http://sfconservancy.org/donate/
- madez 12y ago
  Thanks! I wrote an email to the given address for details on how to donate.

wongarsu 12y ago

If I'm not mistaken this is the first instance of a kernel developer participating in a GPL lawsuit. That could bring a whole new era of GPL lawsuits.

AimHere 12y ago
It's not the first instance. Harald Welte, a member of FSF-Europe and an IPtables contributor, did spend a lot of time enforcing the GPL against violators in Germany, as the driving force behind the late gpl-violations.org.
JoshTriplett 12y ago
The Software Freedom Conservancy did recently announce that they've started working with kernel developers who are willing to have SFC enforce the GPL on their behalf, so that they can directly work on Linux rather than just busybox.

dmitrygr 12y ago

I very much doubt the accuracy of their claims that vmkernel is largely a copy of linux (http://sfconservancy.org/linux-compliance/linux-vs-vmkernel_en.png http://sfconservancy.org/linux-compliance/linux-vs-vmkernel_...) Mostly since in many of those drivers, it performs better than linux, but also because vmware did not hire idiots, (and non-idiots know not to ever use GPL code). Source: worked there a while ago.

toomuchtodo 12y ago
We'll find out in discovery.
ghaff 12y ago
The claim, I believe, is that vmkernel uses Linux in a way that is not permissible under the GPL. At least that was the issue as people understood it the last time this came up: http://www.cnet.com/news/vmware-and-the-gpl-round-two/ http://www.cnet.com/news/vmware-and-the-gpl-round-two/
JoshTriplett 12y ago
Go read https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ for more of the details, including copied source files that contain Linux copyright headers and GPL notices at the top.
rosser 12y ago
That diagram doesn't suggest that vmkernel is "largely a copy" of anything. It specifically alleges "modified Linux code".
froseph 12y ago
The wayback machine* has Zachary Amsden's opinion in 2007 why the vmkernel (and other components) are not in violation of GPL. It's an interesting read. He concludes: > 1) There is no argument that depending on a Linux console OS makes any part of ESX subject to GPL that is not already opene sourced. We have open sourced those GPL components of the system which we have modified and given the changes back to the community. > 2) There is no argument that loading the vmkernel by bootstrapping it with Linux makes the vmkernel subject to GPL. In fact, in the funniest counter-example, Linux itself used to be boostrapped under MS-DOS by running the command loadlin (note the 7 character name, since DOS would not allow enough characters for load-linux). > 3) There is no argument that distributing GPL binary drivers makes any piece of software distributed with them or using them subject to GPL. In fact the converse appears to be explicitly stated in the GPL itself. * http://web.archive.org/web/20080105204946/http://www.venturecake.com/the-vmware-house-of-cards/ http://web.archive.org/web/20080105204946/http://www.venture... updated for formatting.

wil421 12y ago

What could a German court do to VMWare? I am wondering if this is a similar situation to where France wanted to sue Google[2] and more recently Fox News[1]. Not trying to be a naysayer, but I wonder if this will accomplish anything? (since the case is in Germany and not the US where VMWare is incorporated) [1]http://www.theguardian.com/world/2015/feb/12/paris-lawsuit-fox-news-reporting-no-go-zones-non-muslims http://www.theguardian.com/world/2015/feb/12/paris-lawsuit-f... [2]http://www.themarysue.com/france-sues-google-autocomplete/ http://www.themarysue.com/france-sues-google-autocomplete/

uniformlyrandom 12y ago
> It appears that Paris would not be able to recoup funds from Fox News in the event of any judgment in its favor, based on a 2010 law that prohibits US courts from enforcing any foreign judgement for defamation except in narrow circumstances. this is dot a defamation case.
- wil421 12y ago
  So you're saying they would have jurisdiction over a US company in some cases? Just not a defamation one. From my edit [2]http://www.themarysue.com/france-sues-google-autocomplete/ http://www.themarysue.com/france-sues-google-autocomplete/ "In any event, Google is a U.S.-based company, and isn’t compelled to operate under foreign laws. Google’s autocomplete practices are as subject to French law as they are to Japanese law, which is to say they are not subject at all."
  - bad_user 12y ago
    That's a shady article and source. If Google has offices in France, and they probably do, then Google must respect French laws. A country has sovereignty over its territory, which means that if you want to operate under it, you must respect its laws. Don't know what happened with that lawsuit you mentioned, but if Google won, then it must have been because it was a stupid lawsuit.
    - 12y ago

api 12y ago

Good. Free as in freedom does not necessarily mean free as in beer, nor does it mean you can just steal peoples' work without credit. OSS does not mean "public domain" unless that's explicitly stated.

JoshTriplett 12y ago

LWN has a very clear explanation of just how clear-cut this is: https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ https://lwn.net/SubscriberLink/635290/e501ce0264c182f4/ In particular, this isn't just a question of whether a kernel module is a derived work of the kernel. Apparently VMWare has copied code from the Linux kernel, with GPLed headers on top, and compiled that code directly into some of their code.

tbrownaw 12y ago
It sounded to me like they have two things: one that's proprietary and the other that has modified kernel code in it.
- geofft 12y ago
  Interesting. My reading is that there are two components. The first is the Linux bootstrap, which they are entirely in compliance for. The second is vmkernel, which includes some GPL code whose source they're releasing, but vmkernel as a whole is not GPL; this is almost certainly out of compliance (but also easily fixable), unless they're doing something to isolate "vmkdrivers" from the rest of vmkernel. (Can I legally port, say, the GPLv2 ext4 filesystem driver from Linux to a non-GPL OS like OS X? Can Apple pick up that port, and distribute ext4.kext and its source in OS X, without putting the entire xnu kernel under GPLv2?) The harder and fuzzier part is that the ESX boot process works by asking Linux to "load" vmkernel, using the vmklinux helper module. If this is in the sense of loading a kernel module, it's (mostly) clearly wrong. If this is in the sense of loading a userspace app (as if vmklinux was a binfmt module, and vmkernel was a non-ELF executable), then this is (mostly) clearly okay. But it's doing neither of those. It's loading vmkernel above Linux, making the Linux process the first world, analogous to a Xen domU. So this isn't userspace, but it's also arguably a new address space. Neither of which are legal concepts per se, so it's hard to tell where this lies. This fuzzy part is neither the first component (Linux / "vmnix" / the bootstrap) nor the second (vmkernel), but the way in which they interact and are designed around each other. This itself might be an infringement, even if the first is not infringing, and the second is fixed.
  - 12y ago

huhtenberg 12y ago

Busybox strikes again. I worked for a company that was on a receiving end of a similar GPL legal action (though not busybox-based and not from SF Conservancy). I'll tell you what will happen next. VMWare will (a) write a drop-in in-house replacement for busybox (b) they will show that busybox is not an principal part for ESXi and that it can be easily swapped for the in-house replacement. At this point they will release the busybox sources, potentially including the in-house version, but not under GPL. This will hinder the lawsuit, but it will keep dragging on until everyone gets tired of its pointlessness and then it will get quietly dismissed to the mutual satisfaction of both involved parties. The thing is that it's not that VMWare is evil or unethical. It's just that this GPL thing doesn't even register on their legal radar, so it never percolates down to engineering. Similarly any concerns raised by engineering are never taken seriously by the legal council. It's really as simple as that.

tie_ 12y ago
> It's just that this GPL thing doesn't even register on their legal radar... Any engineer competent enough to incorporate Busybox into another product would know what GPL is, and what are the most basic implications that it leads to. I find it much easier to believe that VMWare as a whole was explicitly aware of the licensing situation. It remains to be seen what was their plan B, if there ever was one.
AceJohnny2 12y ago
A non-GPL Busybox alternative like Toybox? http://www.landley.net/toybox/about.html http://www.landley.net/toybox/about.html
shmerl 12y ago
Or you know, they can stop being jerks and release sources for the code they derived from the GPLed one. > It's just that this GPL thing doesn't even register on their legal radar It should register. > Similarly any concerns raised by engineering are never taken seriously by the legal council. Not in any serious company to my experience. Being so lax on legal matters for such company shows very low level of their management's professionalism.

paulhauggis 12y ago

The GNU license doesn't sound very "free" to me. It's strange that the owners of GNU code think that all additions to their code should rightly be released to the public (even if they never wrote the additions). The original code is still "free" for the world to use, so there really isn't anything being taken.

s73v3r 12y ago
If you don't like their conditions for using it, then don't fucking use it. Why do you feel entitled to use other people's work without adhering to their conditions?
- MaulingMonkey 12y ago
  > Why do you feel entitled to use other people's work without adhering to their conditions? I don't see where paulhauggis is claiming he's entitled to use other people's work without adhering to their conditions. Can you point out that claim explicitly for me? (edit: removed a stray nonsensical "it" for clarity) > If you don't like their conditions for using it, then don't fucking use it. This is what I generally do when it comes to GPLed libraries. Even closed source APIs generally grant me more "freedom" as a developer in how I redistribute my own programs invoking those APIs. But hey, it's their right to release GPLed software. I make use of some GPLed software (generally only as a user, not a developer) and thank their developers for their contributions. ...but I don't think it's outrageous to find their definition of "free" a little odd, I get why it can be hard to follow their line of reasoning, and don't see the harm in trying to dig into the reasoning behind using the GPL over, say, a more permissive license such as MIT. Personally, I'm more inclined to release under permissive licenses - but this is your chance to convince paulhauggis of the merits of the former, no?
- paulhauggis 12y ago
  This is exactly why I don't use any GNU code in any of my projects. I am just sick of people claiming it is "free" when it's actually a lure to get companies to use the code for free and then get bitten in the ass in the end by having to release proprietary code. Why is it that whenever I bring up this point, the words "theft" and "stealing" are used by many. However, when we are talking about copyright infringement, I am instantly corrected when I try to use those words to describe essentially the exact same practice?? (people here have even said it is their 'right' to freely copy copyrighted material). "If you don't like their conditions for using it, then don't fucking use it. Why do you feel entitled to use other people's work without adhering to their conditions?" So, it's not about giving and happiness anymore and happiness is it? Giving out software for free and then getting angry and going after someone in court when they don't use it to your liking is not freedom in my mind. I release all of my software under the BSD license. It's true freedom because I don't care what you do with it. It's a true unselfish act. The GNU is just Stallman's attempt to destroy the commercial software industry, tie up our courts with ridiculous GNU violations, and essentially socialize it (a few years back, he had goals of the GNU and one of them is to have a 'compliance officer' mandated by the government in each company). I'm glad most of these attempts have failed.

RexRollman 12y ago

It feels weird not to read about this on Groklaw.

spacemanmatt 12y ago
It feels less informed. HN covers tech to a fine point but Groklaw, IMO, remains untouched for its legal coverage.

sswaner 12y ago

I support Hellwig and the Conservancy in their claim, but I see an unfortunate consequence: This further hinders corporate adoption of open source software. This lawsuit reinforce the corporate legal mindset that "use of open source invites litigation...".

dopamean 12y ago
> This lawsuit reinforce the corporate legal mindset that "use of open source invites litigation...". If this causes trained corporate attorneys to think that the use of open source software invites litigation then they should probably not be attorneys. If software comes with a license then follow the rules of the license. Is that really that hard to do? If you don't understand the terms of the license then that's what the lawyers are for.
Daishiman 12y ago
We are way past the point where that sort of advocacy is necessary. Companies need to understand that compliance is relevant too. VmWare has no excuse for this.
yarrel 12y ago
No it doesn't. If there's a ruling it will create precisely the kind of clarity corporate users want. If there's a settlement it will show that free software developers are reasonable. Either way, it will encourage corporations who are concerned about using free software to educate themselves rather than rely on FUD.
belorn 12y ago
If licenses don't get enforced, "free" game engines like Unreal can't operate. You get the world where the only available code which do not require long meetings, massive upfront cash, lawyers and NDA's are those tiny exceptions which are given under public domain. That is not a future anyone should wish onto the software industry.
lazylizard 12y ago
use of closed source without payment invites litigation? the same with open source then?

tinco 12y ago

I'm no lawyer, but isn't the most exciting fact about this lawsuit that it takes place in Germany? That means no settlements or other silly American business. Just two parties making their case in front of a judge, and the judge deciding who is right and what the repercussions are.

slapshot 12y ago
Surely, two parties can settle a civil case in Germany. Otherwise every dispute between two neighbors over a fence would end up taking up the court's time when they are perfectly capable of agreeing to a solution. Two seconds of Google research suggest that settlements are possible: https://books.google.com/books?id=zZoibg8oR1QC&pg=PA132&lpg=PA132&dq=germany+out+of+court+settlement&source=bl&ots=4_lrCM9oBO&sig=symVw-nXxvPwJsLa_sKmbDx_f4k&hl=en&sa=X&ei=a7z4VMigII_ZoATM64HQBQ&ved=0CCoQ6AEwBDgK#v=onepage&q=germany%20out%20of%20court%20settlement&f=false https://books.google.com/books?id=zZoibg8oR1QC&pg=PA132&lpg=... You might mean plea bargaining, which is more of a US-centric feature, but that's only applicable to criminal cases. This is a civil suit between two parties.
- Tomte 12y ago
  We also have plea bargaining, in various forms.

faragon 12y ago

VMWare: stop this and release the code on GPL v2. It is just old code. And also, recognize the mistake. Period.

jlawer 12y ago
This is not old code. This is the kernel of ESXi 5.5 (Their current product) and its highly likely that ESXi 6.0 has the same problem. This is not old code, it is the heart of their product offerings.
- bonzini 12y ago
  It's not the heart of their product offerings. The heart is vCenter, the kernel is only a small piece. Citrix has no problem with making Xen free software.
  - jlawer 12y ago
    I disagree. When you think of all the functions the vmware hypervisor has a range of features where it is quite far ahead of the competition including Fault Tolerance. vSphere is the management interface, its telling the vmkernel to do things, but the vmkernels are able to do a lot of work without the vsphere service being available (HA, etc). VMware basically invented the modern x86 virtualisation environment, and there is still a lot of value in saying that they do it best as they have the most experience. Make that a commodity and I don't think you have the industry leader anymore.

jorgecastillo 12y ago

Serves them right for not using permissively licensed code!

krick 12y ago

I didn't bother to read it all, but all that stuff makes me feel apathy. I very much believe, that VMWare did something wrong. Maybe even illegal. I believe they deserve to be punished for that. But what I see here doesn't look like punishment at all. What does that solve? Whom does it help? For VMWare it's just professional risk, they have their lawyers, they know their business. So even if it ends up extremely bad for them (which I doubt) it will be just "nasty day at work" and they'll recover somehow. And sure as hell it won't be tragic for EMC (if they notice it at all). The "victim" won't be rewarded as well, because "victims" are ordinary Linux-kernel contributors scattered over the world. So what the whole thing really is: gathering money to feed some lawyers, who might not look as bad as VMWare when you read all that story, but in fact are far less useful for society than even VMWare, who is supposed to be the evil guy here. It just makes me think how pointless all that stuff is. It's depressing.

pbowyer 12y ago

Once the Conservancy has sorted out this GPL situation, perhaps they can investigate the legality of the commercial GPL-using ecosystem around WordPress.