@@ -49,49 +49,50 @@
<dt>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>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 CCS candidates, and
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