Hellwig Announces He Will Appeal VMware Ruling After Evidentiary Set Back in Lower Court

August 9, 2016

Hellwig Announces He Will Appeal VMware Ruling After Evidentiary Set Back in Lower Court

In a statement on his website, Christoph Hellwig
announced today that he will appeal the ruling of the Hamburg District Court,
which recently dismissed his case against VMware. As Christoph underscores in his statement, 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. Christoph also
published (in German and English) the
Court’s ruling
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 to seek expert testimony.

Christoph stated on his website, I’m disappointed that the court didn’t even consider the actual case of reusing the Linux code written by me, and I hope the Court of Appeal will investigate this central aspect of the lawsuit.

Conservancy publishes today its
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.

While these evidentiary points may be new to the German courts, they have been explored in US Federal Court. Conservancy previously successfully litigated as co-plaintiff with Erik Andersen over BusyBox. Many companies who settled, and the US Federal Court in their judgment against Westinghouse, ultimately accepted and agreed that Erik Andersen held copyrights in BusyBox.

The German civil legal system is not precedent-based. As such, this initial ruling creates no legally binding precedent. Our community continues our long journey to build definitive industry precedent regarding derivative and combined works under the GPL.

Reading the ruling, it’s clear that VMware brought considerable
resources to make every possible argument for dismissal,
commented Karen
Sandler, Conservancy’s Executive Director. Christoph and Conservancy have
a fraction of the resources for our enforcement efforts than VMware has at
its disposal.

We ask everyone
to become a Conservancy Supporter today to aid in
our fight for software freedom through this appeal and other enforcement
efforts worldwide.