admittedly, VMware made substantial and good efforts toward compliance on

  BusyBox.  However, VMware still refused to fix a few minor and one major

  compliance problem that we discovered during the process.  Namely, there

  was a major violation regarding Linux itself that ultimately became

  Christoph's key complaint in this lawsuit.</p>

 <p>Meanwhile, when Conservancy realized in late 2012 there might be a major

 Linux violation still present in VMware's ESXi products, Conservancy

 representatives sought every industry contact we had for assistance,

 including those from trade associations, companies (both competitors and

 collaborators with VMware), and everyone else we could think of who might be

 able to help us proceed with friendly negotiations that would achieve

 compliance.  While we cannot name publicly the people we asked for help

 to convince VMware to comply, they include some of the most notable

 executives, diplomats, and engineering managers in the Linux community.  No

 one was able to assist Conservancy in convincing VMware to comply with the

 GPL.  Then, in early 2014, VMware's outside legal counsel in the USA finally

 took a clear and hard line with Conservancy stating that they would not

 comply with the GPL on Linux and argued (in our view, incorrectly) that they

 were already in compliance.</p>

 <p>Conservancy in parallel informed Christoph fully of the details of the

   Linux violation on Christoph's copyrights, and based on Conservancy's

   findings, Christoph began his own investigation and confirmed

   Conservancy's compliance conclusions.  Christoph then began his own

   enforcement effort with legal representation from Till Jaeger.  Christoph has

   been unable to achieve compliance, either, through his negotiations in

   2014.  VMware's last offer was a proposal for a settlement agreement that VMware would

   only provide if Christoph signed an NDA, and Christoph chose (quite

   reasonably) not to sign an NDA merely to look at the settlement offer.</p>

 <p>Thus, this lawsuit comes after years of negotiations by Conservancy to

 achieve compliance — negotiations that ended in an outright refusal by

 VMware's lawyers to comply.  Those events were then followed by a year of

   work by Christoph and Till to achieve compliance in a separate action.</p>

 <p>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.</p>

  </dd>    

  <dt>Can you explain further how VMware incorporated code from Linux into

  their kernel?</dt>

  <dd>Conservancy prepared this diagram to show the technical situation as we

    understand it.  The diagram compares the technical architecture of a full,

    running Linux kernel with a full, running VMware kernel:

    <p>

    <img alt="[Diagram of Linux and VMware running kernels" src="/linux-compliance/linux-vs-vmkernel_en_scaled.png" width="519" height="392" /></a>

    </p>

    <p>If you want to download the diagram, it's available

    in <a href="/linux-compliance/linux-vs-vmkernel_en.svg">SVG

    (English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_en.png">PNG

    (English)</a>, <a href="/linux-compliance/linux-vs-vmkernel_de.svg">SVG

    (German)</a>, and <a href="/linux-compliance/linux-vs-vmkernel_de.png">PNG

    (German)</a>.</p>

  </dd>

  <dt>I care about copyleft and the GPL.  How can I help?</dt>

  <dd>Conservancy needs <a href="#donate-box" class="donate-now">your immediate financial

  support to proceed with this litigation</a>.  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

  with <a href="/supporter/"><em>your</em> support</a>.  If you are an

  individual who supports copyleft and wants to see it defended, please

  donate now.</dd>

  <dt>Why is the case in Germany?</dt>

  <dd>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.</dd>

</dl>

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