We cannot comment on this while litigation is pending. -
Christoph is one of most active developers of the Linux kernel. He has contributed 279,653 lines of code to the latest Linux 3.19 kernel, and thus ranks 20th among the 1,340 developers involved in that release. Christoph also ranks 4th among those who have reviewed third-party source code, and he has tirelessly corrected and commented on other developers' - contributions.
Not currently. Court proceedings are not public by default in Germanyg (unlike in the USA). Conservancy will continue to update this FAQ with information that Conservancy knows about the case. We would all also welcome an agreement with VMware whereby both sides would agree to publish all Court documents. Unfortunately, VMware has explicitly asked for the filings not to be published. Accordingly, Conservancy itself has not even been able to review VMware's statement of defense nor Christoph's - response to that statement of defense.
Conservancy has engaged in a grant agreement with Christoph Hellwig for the purposes of pursuing this specific legal action in Germany. Conservancy is funding this legal action specifically as part of Conservancy's program activity in its GPL Compliance - Project for Linux Developers.
This case is specifically regarding a combined work that VMware allegedly created by combining their own code (“vmkernel”) with portions of Linux's code, which was licensed only under GPLv2. As such, this, to our knowledge, marks the first time an enforcement case is exclusively focused on this type of legal question relating to GPL. However, there are so many different ways to make combined and/or derivative works that are covered by GPL that no single case could possibly - include all such issues.
Neither Conservancy nor Christoph takes this action lightly nor without +
Neither Conservancy nor Christoph takes this action lightly nor without exhausting every other possible alternative first. This lawsuit is the outgrowth of years of effort to convince VMware to comply with GPL.
@@ -121,22 +129,26 @@Simply put, Conservancy and Christoph fully exhausted every possible non-litigation strategy and tactic to convince VMware to do the right thing before filing this litigation.
-With the guidance of counsel, Christoph was able to provide Conservancy with a high-level summary of VMware's statement of defense, which we share in this FAQ. Specifically, 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 @@ -152,12 +164,14 @@ VMK API, as used by vmklinux, is not an “interface” as set forth in the EU - Directive 2009/24/EC.
Conservancy prepared this diagram to show the technical situation as we understand it. The diagram compares the technical architecture of a full, @@ -173,11 +187,13 @@ (English), SVG (German), and PNG (German).
-
The GPL violation at issue involves VMware's ESXi product. Conservancy independently reviewed ESXi and its incomplete CCS @@ -198,13 +214,15 @@ Code, and for which (at least some) source code is provided.
Conservancy examined the incomplete CCS alongside the binary “vmkernel” component. Such examination indicates that functions in “vmkernel” do make function calls to Linux's kernel code - in the usual way for a single program written in C.
Many in the media have talked about the possibility that VMware might use some so-called “shim layer” between Linux code and VMware's proprietary code. While, for decades, there has been much talk of @@ -220,20 +238,24 @@ Code, and for which (at least some) source code is provided. code in their own kernel, and evidence seems to indicate the work as a whole was developed by modifying Linux code in tandem with modifications to “vmkernel” in a tightly coupled manner.
-No, in fact, as we say above, Conservancy doesn't think the phrase “shim layer” has any meaning, despite regular use of that phrase in the media. Conservancy generally doubts there is any technological manipulation that changes the outcome of a - combined/derivative work analysis.
There are numerous examples available that show this. The +
There are numerous examples available that show this. The details of alleged infringement specifically relating to Hellwig's contributions to Linux are of course the main matter of the allegations in the litigation, and Conservancy @@ -282,7 +304,7 @@ LinuxPCIDeviceRemoved(vmk_PCIDevice vmkDev) VMKAPI_MODULE_CALL_VOID(pciDevExt->moduleID, linuxDev->driver->remove, linuxDev); - +
The binary and source packages mentioned above are available +
The binary and source packages mentioned above are available
on VMware's website. These packages contain the
previously-mentioned linux_pci.c,
vmkapi_pci_incompat.h, and k.b00 files, as well as
@@ -577,22 +601,26 @@ at bin/vmtar inside
terms in great detail with the assistance of your own legal counsel before
downloading the software and/or engaging in the process that Conservancy
discusses above.
Conservancy published 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.
There was a ruling in July 2016 in the Hamburg District Court, which dismissed Christoph's case against VMware. The ruling concerned German evidence law and the Court did not rule on the merits of the case. The ruling centered around German evidentary rules related to documenting @@ -605,9 +633,11 @@ copied Christoph's code into their product.
Various individuals and groups have publicly stated their support for Conservancy's and Hellwig's actions in this matter. They include:
While FSF are the authors and license steward of the GNU GPL, it's up to the copyright holder to enforce GPL. VMware created an operating system by combining parts of the kernel named Linux with their own proprietary code, and then added BusyBox to provide the userspace operating system components. @@ -648,11 +680,13 @@ a traditional GNU/Linux system. FSF has many copyrights of its own, but these are almost exclusively on various parts of the GNU system, not on the kernel, Linux. As such, FSF probably does not have copyright interests available to directly -enforce the GPL regarding the primary issue in this case.
Conservancy needs your immediate financial support to proceed with this litigation. Litigation costs are unpredictable, and this lawsuit may take years to resolve. Conservancy is prepared to fund this case through its conclusion, but we can only do so @@ -661,18 +695,19 @@ enforce the GPL regarding the primary issue in this case.
Copyright infringement claims can be brought anywhere that distribution of the copyrighted works occur. VMware distributes ESXi throughout the world, but Germany is close to Christoph's home and his lawyer was available to do the litigation work there. Finally, historically, Mr. Jaeger's cases in Germany have usually achieved worldwide compliance on - the products at issue in those cases.
