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>

   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'

  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  filings not to be published.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

  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

  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

  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

 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>

  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

  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

  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

  <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">

    <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>

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

    Conservancy independently reviewed ESXi 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

              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

    obligations and allow them to keep certain code in their kernel

    <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

    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>

        “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

       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

      vmkDevName[0] = 0;

  }

[...]

VMKAPI_MODULE_CALL_VOID(pciDevExt->moduleID,

                        linuxDev->driver->remove,

                        linuxDev);

<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/generic/release/hardware/vmkapi_pci_incompat.h</code>,

        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.  Conservancy did a similar analysis for ESXi 5.0

  as well as ESXi 5.5 Update 2 and found nearly identical results.</p>

on VMware's website.  These packages contain the

previously-mentioned <code>linux_pci.c</code>,

<code>vmkapi_pci_incompat.h</code>, and <code>k.b00</code> files, as well as

    <code>vmklinux_9</code> and the source code that builds the latter.</p>

  <p>To speed up the process, Conservancy has provided

  <p>Note that VMware may present you with <abbr title="End User Licensing Agreement">EULA</abbr>s and <abbr title="Terms of Service">ToS</abbr> when you download

  software from VMware's website.  Conservancy strongly suggests that you review these

  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.</p>

published <a href="/copyleft-compliance/vmware-code-similarity.html">its

comparison analysis between Christoph's code and VMware's code</a>. 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

    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

    Christoph's contributions that appear in VMware's product.

    In <a href="http://bombadil.infradead.org/~hch/vmware/2016-08-09.html">a

    statement on his website</a>, Christoph Hellwig announced that he will

    appeal the ruling. Christoph also published

    (in <a href="http://bombadil.infradead.org/~hch/vmware/Urteil_2016-07-08.pdf">German</a>

    and <a href="http://bombadil.infradead.org/~hch/vmware/Judgment_2016-07-08.pdf">English)

    the Court's ruling</a> which explains why the materials submitted did not

    satisfy German evidence rules — despite publicly available

    information in Linux's Git repositories. In addition, the Court chose not

    Conservancy's and Hellwig's actions in this matter.  They include:

    <ul>

        <li><a href="http://www.april.org/en/statement-support-software-freedom-conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit">APRIL</a></li>

        <li><a href="https://fsf.org/news/conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit">Free

            Software Foundation</a></li>

        <li><a href="https://fsfe.org/news/2015/news-20150331-01.en.html">Free

        <li><a href="http://lwn.net/Articles/635624/">Luis R. Rodriguez (aka mcgrof), Linux Developer</a></li>

        <li><a href="http://lwn.net/Articles/635855/">Wolfram Sang, Linux Developer</a></li>

        <li><a href="https://twitter.com/josh_triplett/status/573543072929198083">Josh

        Triplett, Linux Developer</a></li>

        <li><a href="https://lwn.net/Articles/635617/">Rik van Riel, Linux Developer</a></li>

    </ul>

see <a href="https://fsf.org/news/conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit">FSF's

statement of support</a>, but why

isn't <a href="https://www.fsf.org/licensing/compliance">FSF enforcing</a> in

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.

As such, ESXi is not

a <a href="https://www.gnu.org/gnu/linux-and-gnu.html">traditional GNU/Linux

system</a>.  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

  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="/sustainer/"><em>your</em> support</a>.  If you are an

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

  donate now.  And, if you make a public statement of support, please email the

  URL

  to <a href="mailto:info@sfconservancy.org">&lt;info@sfconservancy.org&gt;</a>,

  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

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