{% extends "base_about.html" %}

{% block subtitle %}Staff - {% endblock %}

{% block submenuselection %}Staff{% endblock %}

{% block content %}

<h1>Staff</h1>

<h2 id="karen">Karen M. Sandler - Executive Director</h2>

<p>Karen M. Sandler is the executive director of Conservancy. Karen is known

as a cyborg lawyer for her advocacy for free software, particularly in

relation to the software on medical devices. Prior to joining Conservancy,

she was executive director of the GNOME Foundation. Before that, she was

general counsel of the Software Freedom Law Center. Karen

co-organizes <a href="http://www.outreachy.org">Outreachy</a>, the

award-winning outreach program for women globally and for people of color

who are underrepresented in US tech. She is also pro bono counsel to the FSF

and GNOME. Karen is a recipient of the O’Reilly Open Source Award and cohost

of the oggcast <a href="http://faif.us/">Free as in Freedom</a>.</p>

<p>Karen received her law degree from Columbia Law School in 2000, where she

was a James Kent Scholar and co-founder of the Columbia Science and

Technology Law Review. Karen received her bachelor’s degree in engineering

from The Cooper Union.</p>

<h2 id="bkuhn">Bradley M. Kuhn - President and Distinguished Technologist</h2>

<p><a href="http://ebb.org/bkuhn/">Bradley M. Kuhn</a> is the President and

Distinguished Technologist at <a href="https://sfconservancy.org/">Software

Freedom Conservancy</a> and editor-in-chief

of <a href="https://copyleft.org">copyleft.org</a>. Kuhn began his work in

the software freedom movement as a volunteer in 1992, when he became an early

adopter of the GNU/Linux operating system, and began contributing to various

Free Software projects.  He worked during the 1990s as a system administrator

and software developer for various companies, and taught AP Computer Science

at Walnut Hills High School in Cincinnati.  Kuhn's non-profit career began in

2000, when he was hired by the Free Software Foundation (FSF).  As FSF's

Executive Director from 2001–2005, Kuhn

led <a href="https://www.fsf.org/licensing">FSF's GPL enforcement</a>,

launched <a href="https://www.fsf.org/associate/">its Associate Member

program</a>, and invented

the <a href="http://www.gnu.org/licenses/agpl-3.0.html">Affero GPL</a>.  Kuhn

was appointed President of Software Freedom Conservancy in April 2006, was

Conservancy's primary volunteer from 2006–2010, and has been a

full-time staffer since early 2011.  Kuhn holds a summa cum laude B.S. in

Computer Science

from <a href="http://www.loyola.edu/academic/computerscience">Loyola

University in Maryland</a>, and an M.S. in Computer Science from

the <a href="http://www.cs.uc.edu/">University of

Cincinnati</a>.  <a href="http://www.ebb.org/bkuhn/articles/thesis/">Kuhn's

Master's thesis</a> discussed methods for dynamic interoperability of Free

Software programming languages.  Kuhn received

the <a href="http://www.oscon.com/oscon2012/public/schedule/detail/25039">O'Reilly

Open Source Award in 2012</a>, in recognition for his lifelong policy work on

copyleft licensing.  Kuhn has <a href="http://ebb.org/bkuhn/blog/">a blog</a>

and co-hosts the audcast, <a href="http://faif.us/"><cite>Free as in

Freedom</cite></a>.</p>

<h2 id="brett">Brett Smith - Director of Strategic Initiatives</h2>

<p>Brett Smith began his FLOSS advocacy in 2000 at college, organizing

student groups and discussing the issues with professors and journalists.  He

also spent a couple of those summers interning at the Free Software

Foundation, and working in various assisting roles there when he returned to

campus.  Later on he worked as the FSF's License Compliance Engineer from

2006-2012, helping to shepherd the GPLv3 drafting process and do outreach

after the license was released.  From there, he worked as a Systems Engineer

at the World Wide Web Consortium (W3C) and

an <a href="https://arvados.org/">Arvados</a> maintainer at Curoverse before

joining Conservancy as Director of Strategic Initiatives in 2016.  He holds a

BS in Computer Science from the University of Kentucky.</p>

<h2 id="deb">Deb Nicholson - Director of Community Operations</h2>

<p>Deb Nicholson is the Director of Community Operations at the Software Freedom Conservancy where she supports the work of its member projects and facilitates collaboration with the wider free and open source software community. After years of local organizing on free speech, marriage equality, government transparency and access to the political process, she joined the free software movement in 2006. While working for the <a href="https://www.fsf.org/">Free Software Foundation</a>, she created the Women&rsquo;s Caucus to increase recruitment and retention of women in the free software community. She piloted messaging and directed outreach activities at the Open Invention Network, a shared defensive patent pool for free and open source software. She won the O’Reilly Open Source Award for her work as <a href="https://mediagoblin.org/">GNU MediaGoblin</a>&lsquo;s Community Liaison and as a founding board member at <a href="https://blog.openhatch.org/2017/celebrating-our-successes-and-winding-down-as-an-organization/">OpenHatch</a>. She also continues to serve as a founding organizer of the <a href="http://seagl.org/">Seattle GNU/Linux Conference</a>, an annual event dedicated to surfacing new voices and welcoming new people to the free software community.</p>

<p>Deb received her Bachelor of Fine Arts from Bradford College and lives with her husband and her lucky black cat in Cambridge, Massachusetts.</p>

<h2 id="denver">Denver Gingerich - FLOSS License Compliance Engineer</h2>

<p>

Denver works part-time managing the technical side of Conservancy's

license compliance work, triaging new reports and verifying complete and

corresponding source (C&CS).  His roles elsewhere have recently

included financial trading software development on GNU/Linux and

previously involved writing system software for hardware companies,

including driver writing for the kernel named Linux at ATI (now AMD) and

Qualcomm.  He founded a company that designs and builds magnetic stripe

readers for security hobbyists where he designed the hardware and

developed the device's tools and firmware, which are both free software.

Denver also writes free software in his spare time, with patches accepted

into Wine, the kernel named Linux, and GNU wdiff.  Denver received his

BMath in Computer Science from the University of Waterloo.  He gives presentations

about digital civil rights and protecting the free software ecosystem,

having spoken at conferences such as CopyCamp Toronto, FOSSLC's

Summercamp, and the Open Video Conference.</p>

{% endblock %}

{% extends "base_compliance.html" %}

{% block subtitle %}Copyleft Compliance Projects - {% endblock %}

{% block submenuselection %}AboutCompliance{% endblock %}

{% block content %}

<p>Free and open source software is

        everywhere and in everything; yet our software freedom is constantly

        eroded.  With the help of its volunteers, <a href="/members/current/">member projects</a>, and <a href="/about/staff/">staff</a>,

  Conservancy stands up for users' software freedom via its copyleft compliance work.</p>

<p>Conservancy engages in copyleft compliance work in two different ways: by acting directly

on behalf of <a href="/projects/">Conservancy's Member Projects</a> who request

Free and Open Source License compliance efforts, and for

specific, targeted member projects for communities of developers.</p>

<p>Conservancy's Copyleft Compliance Projects are run in a collaborative manner with

the project developers.  All copyright holders involved have the opportunity

to give input and guidance on Conservancy's strategy in dealing with

compliance issues.  Thus, all Conservancy's compliance matter have full

  support of relevant copyright holders.</p>

<p>In addition to taking feedback internally from those who participate as

  part of the coalitions described below, Conservancy also welcomes feedback

  and discussion with the general public about our copyleft compliance

  efforts.  This discussion happens on

  Conservancy's <a href="https://lists.sfconservancy.org/mailman/listinfo/principles-discuss">principles-discuss</a>

  mailing list, which is named

  for <a href="/copyleft-compliance/principles.html">Principles of

  Community-Oriented GPL Enforcement</a> which Conservancy follows in all our

  copyleft compliance.</p>

<p>Historically, Conservancy was well-known for its ongoing license

compliance efforts on behalf of its BusyBox member project.  Today, Conservancy

does semi-regular compliance work for its BusyBox, Evergreen, Git, Inkscape, Mercurial,

Samba, Sugar Labs, QEMU and Wine member projects.  If you are a copyright holder

in any member project of Conservancy, please contact the project's leadership committtee,

via <a href="mailto:PROJECTNAME@sfconservancy.org">&lt;PROJECTNAME@sfconservancy.org&gt;</a>

for more information on getting involved in compliance efforts in that project.

</p>

<h2 id="linux">GPL Compliance Project For Linux Developers</h2>

<p>In May

2012, <a href="/news/2012/may/29/compliance/">Conservancy

launched</a> the <cite>GPL

Compliance Project for Linux Developers</cite>, which handles compliance and

enforcement activities on behalf of more than a dozen Linux copyright

holders.</p>

<p>The GPL Compliance Project for Linux Developers is comprised of copyright

holders in the kernel, Linux, who have contributed to Linux under its

license, <a href="http://www.gnu.org/licenses/gpl-2.0.html">the

GPLv2</a>. These copyright holders have formally asked Conservancy to engage

in compliance efforts for their copyrights in the Linux kernel.  In addition,

some developers have directly assigned their copyrights on Linux to Conservancy,

so Conservancy also enforces the GPL on Linux via its own copyrights in Linux.</p>

<p>Linux copyright holders who wish to assign copyright to or sign an enforcement agreement with

Conservancy should

  contact <a href="mailto:linux-services@sfconservancy.org">&lt;linux-services@sfconservancy.org&gt;</a>.

  In 2016,

  Conservancy <a href="/news/2016/nov/03/linux-compliance-agreements/">made

    public the template agreements used as part of this project</a>; both the

  <a href="/docs/blank_linux-enforcement-agreement.pdf">non-anonymous</a> and

  <a href="/docs/blank_anonymous-linux-enforcement-agreement.pdf">anonymous</a>

  versions are available.  However, please <strong>do not</strong> sign these

  unilaterally without contacting and discussing

  with <a href="mailto:linux-services@sfconservancy.org">&lt;linux-services@sfconservancy.org&gt;</a>

  first.</p>

<h2 id="debian">The Debian Copyright Aggregation Project</h2>

<p>In August 2015, <a href="/news/2015/aug/17/debian/">Conservancy announced the Debian Copyright Aggregation

Project</a>.  This project allows Debian contributors to assign copyrights to

Conservancy, or sign enforcement agreements allowing Conservancy to enforce

Free and Open Source (FOSS) licenses on their behalf.  Many Debian contributors

have chosen each of these options already, and more continue to join.</p>

<p>Debian contributors who wish to assign copyright to or sign an enforcement agreement with

Conservancy should contact <a href="mailto:debian-services@sfconservancy.org">&lt;debian-services@sfconservancy.org&gt;</a>.</p>

<p>Conservancy is dedicated to encouraging all users of software to comply

  with Free Software licenses. Toward this goal, in its compliance efforts,

  Conservancy helps distributors of Free Software in a friendly spirit of

  cooperation and participation.  In this spirit, Conservancy has co-published,

  with the Free Software Foundation (FSF), <a href="/copyleft-compliance/principles.html">the principles that both organizations

  follow in their compliance efforts</a>.

  Also in collaboration with the FSF, Conservancy also sponsors

  the <a href="https://copyleft.org/guide/"><cite>Copyleft and the GNU

  General Public License:A Comprehensive Tutorial and Guide</cite></a>,

  which <a href="/news/2014/nov/07/copyleft-org/">formally

  launched in fall 2014</a>.  The Guide includes tutorial materials about

  copyleft and compliance with copyleft licenses,

  including <a href="https://copyleft.org/guide/comprehensive-gpl-guidepa2.html"><cite>A

  Practical Guide to GPL Compliance</cite></a>.  The materials

  on <a href="https://copyleft.org/">copyleft.org</a> have been developed and

  improved since 2002, and are themselves copylefted, and developed

  collaboratively in public.</p>

<p>However, the Guide is admittedly a large document, so for those who are

  interested in a short summary of describing how Conservancy handles GPL

  enforcement and compliance

  work, <a href="/blog/2012/feb/01/gpl-enforcement/">this

  blog post outlining the compliance process</a> is likely the best source.</p>

<p>If you are aware of a license violation or compliance issue regarding

  Debian, Linux, or

  any <a href="/members/current/">Conservancy member

  project</a> (&mdash; in particular BusyBox, Evergreen, Inkscape, Mercurial,

  Samba, Sugar Labs, or Wine),

  please <a href="mailto:compliance@sfconservancy.org">contact us by email at

    &lt;compliance@sfconservancy.org&gt;</a>.</p>

<p>If you think you've found a GPL violation, we encourage you to

   read <a href="http://ebb.org/bkuhn/blog/2009/11/08/gpl-enforcement.html">this

   personal blog post by our Distinguished Technologist, Bradley M. Kuhn</a>,

   about good practices in discovering and reporting GPL violations.  (We'd

   also like someone to convert the text of that blog post into a patch for

   <a href="http://compliance.guide">The Compliance Guide on

   copyleft.org</a>; submit it

   via <a href="https://k.copyleft.org/guide/">k.copyleft.org</a>.)</p>

<p>Finally, Conservancy welcomes <a href="#donate-box"

  class="donate-now">donations</a> in support of our GPL Compliance Projects,

  and we encourage you to become a <a href="/supporter/">an official

  Supporter of Software Freedom Conservancy</a>. </p>

</div>

{% endblock %}

{% extends "base_compliance.html" %}

{% block subtitle %}Copyleft Compliance Projects - {% endblock %}

{% block submenuselection %}VMwareLawsuitAppeal{% endblock %}

{% block content %}

<h2>The time has come to stand up for the GPL.</h2>

<p><em>In March 2015, Conservancy <a href="/news/2015/mar/05/vmware-lawsuit/">announced Christoph Hellwig's

    lawsuit against VMware in Germany</a>.  In July 2016,

    we <a href="/news/2016/aug/09/vmware-appeal/">announced that Christoph

    would appeal the lower court's ruling</a>.</p>

    Support Conservancy's and Christoph's efforts in this area

    by <a href="/supporter/">becoming a Conservancy

    supporter</a> or <a href="#donate-box" class="donate-now">donating via

    the link on the right</a>.</em></p>

<p>We were told to ask nicely and repeatedly, so we did.</p>

<p>We asked allies to help us make contact in friendly and professional

  ways.</p>

<p>Everyone asked us to give companies as many chances as possible and as

  much help as possible to comply with copyleft, so we did.</p>

<p>We've worked for years to help VMware comply with the GPL, but they

refuse. Negotiations broke down for the last time when they insisted on an 

NDA just to discuss settlement terms!</p>

<p>Christoph is among the most active developers of Linux.  As of Feburary 

19, 2015, Christoph has contributed 279,653 lines of code to the Linux kernel, 

and ranks 20th among the 1,340 developers involved in the latest 3.19 kernel 

release.  Christoph also

ranks 4th among those who have reviewed third-party source code, tirelessly

corrected and commented on other developers' contributions.  Christoph

licenses his code to the public under the terms of the GPL for practical and

ideological reasons.  VMware, a company with net revenue of over $1 billion

and over 14,000 employees, ignored Christoph's choice.  They took Christoph's

code from Linux and modified it to work with their own kernel without releasing

source code of the resulting complete work.  This is precisely the kind of

activity Christoph and other kernel developers seek to prevent by choosing

the GPL.  The GPL was written to prevent this specific scenario!</p>

<h3>This is a matter of principle.</h3>

<p>Free and open source software is everywhere and in everything; yet our

  software freedom is constantly eroded.</p>

<p>We want companies to incorporate our software into new products, but there

are a few simple rules.  Copylefted free software is so prevalent because

there's no way a company can compete without using a significant amount of

free software to bring products to market in reasonable time. They get so

much benefit from our work.  Allowing the whole community to review, use,

improve and work with the code seems very little to ask in return.  Copyleft

also ensures competitors cannot undercut those who contribute.  Without active enforcement, the GPL is

effectively no different from a non-copyleft license.</p>

<p>What point is there for companies to make sure that they're compliant if

there are no consequences when the GPL is violated? Many will continue to

ignore the rules without enforcement.  We know that there are so many

companies that willingly comply and embrace GPL as part of their business.

Some are temporarily out of compliance and need to be brought up to speed,

but willingly comply once they realize there is an issue.  Sadly, VMware sits

in the rare but infamous class of perpetually non-compliant companies. VMware

has been aware of their noncompliance for years but actively refuses to do

the right thing.  Help us do right by those who take the code in the spirit

it was given and comply with copyleft, and stop those don't.</p>

<p>We know that copyleft isn't a favorite licensing strategy for some in our

community.  Even so, this case will help bring clarity on the question of

combined and derivative works, and is essential to the future of all software

freedom.  This case deserves support from copyleft and non-copyleft free

software communities alike.</p>

<h3>Show you care</h3>

<p>Bad actors have become complacent because they think you don't care.  A

  strong show of public support for Conservancy and Christoph's position will

  help our legal case and demonstrate the interpretive context for it.

  Please <a href="#donate-box" class="donate-now">donate</a> to our campaign to enforce the GPL.  Help Conservancy

  increase its number of individual donors, so we have clear evidence to show

  bad actors that the GPL matters to the individuals in our community.

  After you <a href="#donate-box" class="donate-now">donate</a>, go and tell the world: &ldquo;Play by the rules, @VMware. I defend the #GPL with Christoph &amp; @Conservancy. #DTRTvmware  Help at https://sfconservancy.org/supporter/ &rdquo; on your blog or microblog.

  </p>

<h3>Isn't the combined works and/or derivative works question a legal grey area?</h3>

<p>We don't think so, but this case will let the court to decide that question.

Either way, it's beneficial to our entire community to find out what the

judges think.  (Check out our <a href="/copyleft-compliance/vmware-lawsuit-faq.html">FAQ to find out more

information</a>.)</p>

<p>Help us pay for this expensive lawsuit and to generally defend software

  freedom and the GPL.  Help us show the world that copyleft matters.  We are excited 

  to announce that we already reached an anonymous match for this campaign, where every dollar donated 

  was matched up to $50,000. However, that $100,000 is just an initial step

  and there is so much GPL enforcement work to do.  So, please

  donate now: by becoming <a href="/supporter/">a Conservancy Supporter</a> or

  via <a href="#donate-box" class="donate-now">donate link on the right</a>.</p>

<h3>Want To Know More?</h3>

<p>Watch the video below of Conservancy Executive Director, Karen Sandler,

  <a href="/news/2015/mar/31/libreplanet/">delivering a keynote on this topic

  at

    LibrePlanet 2015</a>:</p>

<p>

 <video controls

         preload="auto" class="video-js vjs-default-skin"

         data-setup='{"height": 276,

                      "width": 640 }'>

    <source src="https://media.libreplanet.org/mgoblin_media/media_entries/113/karen-sandler-keynote-2015.medium.webm"

              type="video/webm; codecs="vp8, vorbis""

             />

 </video>

</p>

<p>Or, read <a href="/copyleft-compliance/vmware-lawsuit-faq.html">our FAQ about

    the lawsuit</a>.</p>

{% endblock %}

{% extends "base_compliance.html" %}

{% block subtitle %}Copyleft Compliance Projects - {% endblock %}

{% block submenuselection %}VMwareLawsuitFAQ{% endblock %}

{% block content %}

<h1>Frequently Asked Questions about Christoph Hellwig's VMware Lawsuit</h1>

<p>Conservancy maintains this

  <abbr title="Frequently Asked Questions">FAQ</abbr> list regarding

  <a href="/news/2015/mar/05/vmware-lawsuit/">Christoph Hellwig's lawsuit against VMware

  in Germany over alleged GPL violations on Linux</a> as a service to the

  Free Software community, and in particular, the copyleft community.  Conservancy

  realizes this lawsuit generates many questions and interest

  from the community.  Legal counsel (both Conservancy's own, and

  Christoph's lawyer, Till Jaeger) correctly advise us to limit our public

  comments regarding specific details of the case while litigation remains

  pending in court.  Nevertheless, Conservancy, as a

  non-profit charity serving the public good, seeks to be as transparent as

  possible.  If you have additional questions you'd like to see answered

  here, please <a href="mailto:info@sfconservancy.org">email

  &lt;info@sfconservancy.org&gt;</a>, but understand that we may often need

  to answer: <q>We cannot comment on this while litigation is pending</q>.</p>

<dl>

  <dt>Who is the Plaintiff in the lawsuit?</dt>

  <dd>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.</dd>

  <dt id="court-documents">Are the court documents released?</dt>

  <dd>Not currently.  Court proceedings are not public by default in Germany

  (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.</dd>

  <dt id="funding">Who's funding this lawsuit?</dt>

  <dd>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 <a href="/copyleft-compliance/about.html">GPL Compliance

  Project for Linux Developers</a>.</dd>

  <dt id="combined-and-derivative-works">Is this the Great Test Case of Combined / Derivative Works?</dt>

  <dd>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. </dd>

  <dt id="why-lawsuit">Why must you file a lawsuit?  Isn't there any other way to convince

    VMware to comply with GPL?</dt>

  <dd><p>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.</p>

    <p>In October 2011, Conservancy received a GPL violation report on

  BusyBox for VMware's ESXi products.  Conservancy opened the matter in its

  usual, friendly, and non-confrontational way.  Nevertheless, VMware

  immediately referred Conservancy to VMware's outside legal counsel in the

  USA, and Conservancy negotiated with VMware's legal counsel throughout

  late 2011, 2012 and 2013.  We exchanged and reviewed

  <a title="Complete, Corresponding Source" href="https://copyleft.org/guide/comprehensive-gpl-guidech6.html#x9-470005.2.1">CCS</a> candidates, and

  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>What are VMware's primary defenses for their alleged copyright

    infringement?</dt>

  <dd>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.</dd>

  <dt>How did Christoph respond to VMware's statement of defense?</dt>

  <dd>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 <strong>not</strong> an

  interoperability module, but rather an arbitrary separation of the Linux

  derived module from vmkernel.   Specifically, vmklinux is nonfunctional

  with any non-ESX OS, and vmklinux is tied intimately to a specific version

  of ESXi.  Vmklinux does not allow reuse of unmodified Linux drivers in

  binary or source form.  Christoph further points out that if the Court

  allows proprietarization of an arbitrary split portion of GPL'd computer

  programs, it could allow redistributors to trivially bypass the strong

  copyleft terms found in the GPL.  Finally, the response explains that

  vmkernel and vmklinux don't “communicate over an interface”,

  rather they run in the same process as a single computer program.  Thus,

  VMK API, as used by vmklinux, is not an “interface” as set

  forth in

  the <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009L0024&from=EN">EU

      Directive 2009/24/EC</a>.</dd>

  <dt id="tech">Can you explain further how VMware incorporated code from Linux into

  their kernel?</dt>

  <dd>

  <p id="diagram">

    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>

      <a href="/copyleft-compliance/linux-vs-vmkernel_en.png">

    <img class="inside-faq" alt="[Diagram of Linux and VMware running kernels]" src="/copyleft-compliance/linux-vs-vmkernel_en_scaled.png" /></a>

    </p>

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

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

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

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

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

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

  </dd>

  <dt>Can you explain further in words (rather than a picture) about the central

  component in ESXi that the lawsuit alleges violates the GPL?</dt>

<dd>

    <p>The GPL violation at issue involves VMware's ESXi product.

    Conservancy independently reviewed ESXi 5.5 and its incomplete

      <abbr title="complete, corresponding source">CCS</abbr>

    release as part of our GPL enforcement efforts described above.</p>

    <p>Conservancy's preliminary investigation indicated that the operating

    system kernel of VMware ESXi product consists of three key components:

        <ul>

          <li> the proprietary component &ldquo;vmkernel&rdquo;, which is

            released in binary form only,</li>

            <li>the kernel module &ldquo;vmklinux&rdquo;, which contains modified Linux

Code, and for which (at least some) source code is provided.

            <li>other kernel modules with device drivers, most of which are

            modified Linux drivers, and for which (at least some) source code

              is provided.</li>

        </ul>

    <p>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.</p></dd>

    <dt>Doesn't VMware's &ldquo;shim layer&rdquo; insulate them from GPL

    obligations and allow them to keep certain code in their kernel

    proprietary?</dt>

    <dd>

    <p>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

    various mechanisms of GPL obligation avoidance, Conservancy believes that

    merely modifying technical details of a combination's construction

    does not typically influence the legal analysis in a combined or

    derivative work scenario.</p>

    <p>Furthermore, the technical details of VMware's alleged GPL violation

    do not even mirror the typical scenarios that have usually been called

    “shim layers”.  Conservancy's analysis of VMware's ESXi

    product, in fact, indicates that VMware rather flagrantly combined Linux

    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 &ldquo;vmkernel&rdquo; in a tightly coupled manner.</p>

    </dd>

   <dt id="shim-meaningless">Is Conservancy proposing a &ldquo;shim

      layer&rdquo; as a viable solution for GPL compliance?</dt>

    <dd>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.</dd>

    <dt id="example">Can you give a <em>specific</em> example, with code, showing how

    VMware combined Linux source code with their binary-only components?</dt>

     <dd><p>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

       released <a href="#diagram">the diagram above</a> to exemplify that

       issue.  Conservancy continues to <a href="#court-documents">hope VMware will

       agree to make public all court documents</a> as a matter of public

       good, since the court documents discuss the specifics of alleged

         infringement on Hellwig's copyrights.</p>

       <p>However, Conservancy examined VMware's ESXi 5.5 product in detail

       even before Hellwig's enforcement action began.  Below is one example

       among many where VMware's CCS was incomplete per GPLv2§2(c) and

       GPLv2§3(a).  (One can verify these results by

       <a href="#verify">downloading and installing the binary and source

       packages for VMware's ESXi 5.5 Update 2</a>.)  Note that this

       example below is not necessarily regarding

       Hellwig's copyrights; VMware incorporated Linux code copyrighted by

       many others as well into their kernel.</p>

       <h3>Example of &ldquo;vmkernel&rdquo;'s combination with Linux code</h3>

       <p>Our example begins with examination of the file

           called <code>vmkdrivers/src_92/vmklinux_92/vmware/linux_pci.c</code>,

           which can be found in the “Open Source” release for

           ESXi 5.5.0 Update 2 (5.5U2).  A small excerpt from that file, found in the

           function <code>LinuxPCIDeviceRemoved()</code>, reads as follows:</p>

<pre>

#include <linux/pci.h>

[...]

/*

 * This function [...] is modelled after pci_remove_device, the function which would

 * be called in a linux system.

 */

static void

LinuxPCIDeviceRemoved(vmk_PCIDevice vmkDev)

{

   LinuxPCIDevExt *pciDevExt;

   struct pci_dev *linuxDev;

[...]

  if (unlikely(

    vmk_PCIGetDeviceName(vmkDev, vmkDevName, sizeof(vmkDevName)-1) != VMK_OK))

  {

      vmkDevName[0] = 0;

  }

[...]

VMKAPI_MODULE_CALL_VOID(pciDevExt->moduleID,

                        linuxDev->driver->remove,

                        linuxDev);

</pre>        

<h4>Combination of &ldquo;vmkernel&rdquo; code with &ldquo;vmkdrivers&rdquo;</h4>

<p>The function, <code>vmk_PCIGetDeviceName()</code> must be defined, with an

      implementation, for this code above to work, or even compile.

      Inside <code>BLD/build/HEADERS/vmkapi-current-all-public/vmkernel64/release/device/vmkapi_pci_incompat.h</code>,

      found in the <code>vmkdrivers</code> package of ESXi 5.5U2, shows a

      function header definition for <code>vmk_PCIGetDeviceName()</code>.

      However, the source of its implementation is not provided there or

      anywhere in the source release.</p>

<p>Further evidence that the implementation of this function occurs elsewhere

  can by found by running <code>objdump -x</code> on the un-vmtar'ed

  <code>vmklinux_9</code> module.  Note the following output in the &ldquo;SYMBOL

  TABLE&rdquo; section:</p>

<pre>

0000000000000000         *UND*  0000000000000000 vmk_PCIGetDeviceName

</pre>

<p>

…and the following lines found in the  “RELOCATION RECORDS FOR

[.text]” section:

</p>

<pre>

00000000000327ff R_X86_64_PC32     vmk_PCIGetDeviceName+0xfffffffffffffffc

0000000000035318 R_X86_64_PC32     vmk_PCIGetDeviceName+0xfffffffffffffffc

00000000000387e1 R_X86_64_PC32     vmk_PCIGetDeviceName+0xfffffffffffffffc

000000000003cf40 R_X86_64_PC32     vmk_PCIGetDeviceName+0xfffffffffffffffc

</pre>

<p>The above two properties both suggest that the <code>vmklinux_9</code>

 module requires: (a) a definition of the <code>vmk_PCIGetDeviceName()</code>

 function to operate, but (b) that function is not defined

 inside <code>vmklinux_9</code> itself.</p>

<p>The definition can however be found in binary-only software provided in

  ESXi 5.5U2 &mdash; specifically, inside a file named <code>k.b00</code>,

  which is located in partition 5 on a disk where ESXi has been installed (or

  in the ESXi 5.5U2 installer ISO image).  Running <code>file</code>

  after <code>gunzip</code> on this file yields &ldquo;ELF 64-bit LSB shared

  object&rdquo;.  Meanwhile, <code>file k.b00</code> reports &ldquo;gzip

  compressed data, was ‘vmvisor64-vmkernel.stripped’”.

  These findings strongly suggests this is an image of the

  &ldquo;vmkernel&rdquo; component.  An <code>objdump -x</code> yields this

  &ldquo;SYMBOL TABLE&rdquo; section:</p>

<pre>

000041800036a408 g     F .text  0000000000000137 vmk_PCIGetDeviceName

</pre>

<p>&hellip; which indicated these binary file contains the function body

for  <code>vmk_PCIGetDeviceName</code>.</p>

<p>Furthermore, after detailed searching, Conservancy found no evidence that any

  other code (other than modified Linux code) makes calls

  to <code>vmk_PCIGetDeviceName</code>.  This provides a strong indication

  that this function's primary purpose is to combine Linux code with

  “vmkernel”.  Conservancy also found other functions where similar analysis

  yields similar results as above.</p>

<h4>Linux's <code>struct pci</code> combined with <code>LinuxPCIDeviceRemoved()</code></h4>

<p>Having established the direct and close combination

  of <code>vmk_PCIGetDeviceName</code>

  and <code>LinuxPCIDeviceRemoved()</code>,  focus now on the

  quoted code from <code>LinuxPCIDeviceRemoved()</code>.  That code, note

  that one of the local variables is <code>struct pci_dev *linuxDev;</code>.

  A definition of <code>pci_dev</code> is found in

  <code>vmkdrivers/src_92/include/linux/pci.h</code> (which

  is <code>#include</code>'d above) reads:</p>

  <pre>

struct pci_dev {

[...]

       struct pci_driver *driver;      /* which driver has allocated this device */

[...]

truct pci_driver {

        char *name;

[...]

        void (*remove) (struct pci_dev *dev);   /* Device removed (NULL if not a hot-plug capable driver) */

[...]

#if defined(__VMKLNX__)

        /* 2008: Update from Linux source */

        u8              revision;       /* PCI revision, low byte of class word */

#endif /* defined(__VMKLNX__) */

  };

</pre>

<p>These structures, and based on those from Linux itself

  (<a href="http://lxr.free-electrons.com/source/include/linux/pci.h?v=2.6.24">a

    similar version of this file can be seen in Linux 2.6.24</a>), and as can

  be seen above, have been modified to work with &ldquo;vmkernel&rdquo;</p>

<p>In <code>LinuxPCIDeviceRemoved()</code>, we saw a macro called with a

  variable, <code>linuxDev</code> which was of type <code>struct pci</code>.

  Thus, the combination of code from Linux's <code>pci.h</code>

  and VMware's <code>vmware/linux_pci.c</code> is very tightly coupled and

  interdependent.</p>

<h4><code>VMKAPI_MODULE_CALL_VOID</code> macro calls driver's code</h4>

<p>The

  file <code>BLD/build/HEADERS/vmkapi-current-all-public/vmkernel64/release/base/vmkapi_module.h</code>

  contains the macro definition of  <code>VMKAPI_MODULE_CALL_VOID</code>,

  which is quoted below (with debug lines removed):

<pre>

#define VMKAPI_MODULE_CALL_VOID(moduleID, function, args...)  \

do {                                                    \

    vmk_ModInfoStack modStack;                          \

    vmk_ModulePushId(moduleID, function, &modStack);    \

    (function)(args);                                   \

    )                                                   \

    vmk_ModulePopId();                                  \

} while(0)

</pre>

<p>When the macro is expanded, it means that <code>(function)(args)</code> is

  actually expanded to <code>linuxDev->driver->remove(linuxDev)</code>.

  Therefore, we see <code>LinuxPCIDeviceRemoved()</code>, makes directs calls

  to a driver's remove() function, by combining with Linux's <code>struct

  pci</code>, and by VMware's introduction of this new calling code.

  Conservancy has confirmed many drivers from Linux are incorporated via

  these mechanisms; one specific example is discussed next.</p>

<h4>Combination of the tg3 driver with &ldquo;vmkernel&rdquo;</h4>

<p>VMware includes a file <code>vmkdrivers/src_9/drivers/net/tg3/tg3.c</code>

  in their source release.  This file appears to be Linux's tg3 driver.  It

  includes a definition of the <code>struct pci_dev</code> for this device,

  which reads:</p>

<pre>

static struct pci_driver tg3_driver = {

[...]

        .remove         = __devexit_p(tg3_remove_one),

</pre>

<p>Therefore, when the code in <code>LinuxPCIDeviceRemoved()</code>

  calls <code>linuxDev->driver->remove(linuxDev)</code>, the code ultimately

  called (in the case where a tg3 card is driven by the kernel)

  is <code>tg3_remove_one()</code>, which is found in <code>tg3.c</code> and

  comes directly from Linux.</p>

<p>(Note: <code>__devexit_p</code> is a straightforward macro found

  in <code>vmkdrivers/src_92/include/linux/init.h</code> (which also comes

  from Linux) that will simply expand to its first argument in this

  case.)</p>

<h4>VMware distribution of binary version of <code>tg3.c</code></h4>

<p>VMware furthermore distributes a modified version of <code>tg.c</code> in

  binary form.  This can be found in <code>usr/lib/vmware/vmkmod/tg3</code>,

  which is extracted by un-vmtar'ing the file <code>net_tg3.v00</code> (found

  on the ESXi 5.5U2 installer ISO image).  Conservancy has confirmed that

  file is a compiled version of <code>tg3.c</code></p>

<h4>Conclusions</h4>

<p>Given this evidence and related contextual clues, the only logical

  conclusions are:</p>

    <ul><li><code>vmklinux_9</code>, a binary object, dynamically links with

        the binary objects: <code>k.b00</code> and <code>tg3</code> (the

        driver built from <code>tg3.c</code>'s source).  These three binary

        objects together form a single running binary (likely along with many

        other binary objects as well).</li>

      <li>That single running binary contains code licensed under the GPLv2

       &mdash; namely the code derived from <code>tg3.c</code>

       and <code>pci.h</code>.  Thus, the single running binary may be

       distributed in binary form only under permissions provided under GPLv2

       — in

       particular <a href="https://gnu.org/licenses/gpl-2.0.html#section2">GPLv2&sect;2</a>

       and <a href="https://gnu.org/licenses/gpl-2.0.html#section3">GPLv2&sect;3</a>.</li>

      <li>GPLv2&sect;3(a&ndash;b) requires that <q>complete corresponding

          machine-readable source code</q> must accompany binary

          distributions such as these.  GPLv2§3 further states

          that <q>for an executable work, complete source code means all the

          source code for all modules it contains</q>.</li>

      <li>The binary work in question contains modules from <code>k.b00</code>,

        <code>vmlinux_9</code> and <code>tg3</code>.</li>

      <li>VMware did not provide source code for any modules found in

        <code>k.b00</code>.</li>

      <li>Therefore, VMware failed to comply with the GPLv2, as such

      compliance requires source code (or an offer therefor) for the material

        in <code>k.b00</code>.</li>

    </ul>

<p>The above is but one piece of evidence among many, but hopefully it helps

  to explain some of the “combined work” violations found in

  VMware's ESXi product.</p>

<dt id="verify">How can I verify Conservancy's technical findings above?</dt>

<dd><p>The binary and source packages mentioned above are available

on VMware's website.  These packages contain the