VMware Suit Concludes in Germany

VMware Announces Plans to Remove Non-complying Code, Hellwig Decides Not to Appeal

April 2, 2019

Today, Christoph Hellwig announced the conclusion of his case against VMware in Germany. The Hamburg Higher Regional Court affirmed the lower court’s decision, which dismissed the case on purely procedural grounds; they did not address the main question of the case. Hellwig has decided with his legal counsel, Till Jaeger, and after conferring with Conservancy, to not appeal the case further in German courts.

“The subject of the complaint I filed was the question of whether the distribution of the software Hypervisor vSphere VMware ESXi 5.5.0 software is copyright infringement because VMware has no permission to create a derivative work from Linux under the GNU General Public License (GPL)” says Hellwig. Both courts declined to consider that essential question.

VMware, in their news item about the decision by the Court, announced that they will finally remove vmklinux from vSphere. Both Hellwig and Conservancy had asked VMware to remove the Linux code from VMware’s proprietary kernel many times. While the preferred form of GPL compliance is release of the entire work under the terms of the GPL, a common alternative is to merely remove the GPL’d code from the product. VMware chose the latter method to comply.

“VMware knew what they were doing was wrong, but continued to generate revenue by infringing copyrights in Linux, while only slowly working toward non-infringement.” explained Karen Sandler, Conservancy’s Executive Director. She added: “As we have always said, we simply want companies to follow the rules and do the right thing when they incorporate GPL’d code into their products.” Hellwig added: “When VMware takes this action, they will finally comply with the GPL. Reaching this goal has cost me a lot of time and energy in recent years.”

Conservancy’s staff also spent a significant amount of time and resources at each stage of the proceedings — most recently, analyzing what this ruling could mean for future enforcement actions. The German court made a final decision in this case on procedure and standing, not on substance. While we are disappointed that the courts did not take the opportunity to deliver a clear pro-software-freedom ruling, this ruling does not set precedent and the implications of the decision are limited. This matter certainly would proceed differently with different presentation of plaintiffs or in another jurisdiction.

In addition to VMware committing to removing vmklinux from their kernel, this case also succeeded in sparking significant discussion about the community-wide implications for free software when some companies playing by the rules while others continually break them. Our collective insistence, that licensing terms are not optional, has now spurred other companies to take copyleft compliance more seriously. The increased focus on respecting licenses post-lawsuit and providing source code for derivative works — when coupled with VMware’s reluctant but eventual compliance — is a victory, even if we must now look to
other jurisdictions and other last-resort legal actions to adjudicate the question of the GPL and derivative works of Linux.

Community Rose to Meet this Challenge

In an ideal world, for-profit companies would follow community licenses without Conservancy’s investment of money and time to compel companies to act appropriately. Unfortunately, our world is far from ideal, and maintaining a fair and functioning software commons is essential for software freedom. Violating companies have their own lawyers and engineers and could choose to use their considerable resources to comply with the licenses of the software they use — instead of obfuscating and delaying compliance as VMware did. While we and the copyleft community remain ready to support further enforcement, we still hope that for-profit users of copylefted code will instead do their own work to come into compliance.

In addition to continuing its work in copyleft enforcement, Conservancy and related charities also maintain many definitive resources on what “complete and corresponding source” (CCS) is, how to use the GPL and how the GPL compliance process works. Additionally, Conservancy hosts resources, meetings and engages in conversations at both industry and community events on how to manage procurement and compliance together. Conservancy itself has patiently explained CCS many times to violators in accordance with our Principles.

Looking Ahead

Free software contributors are stronger when we stand together. We believe that the enforcement efforts by Patrick McHardy in the German court system, which both violate our Principles and which most Linux kernel developers considered to be wrongful and self serving, provided an unfortunate context for Hellwig’s action. While Hellwig’s action
predates McHardy’s actions, the latter moved through the German legal system more quickly, since McHardy did not prioritize compliance over profit (as Hellwig carefully did). It seems that in light of McHardy’s actions, the German courts viewed GPL enforcement with undue suspicion. Conservancy and Hellwig remain committed to ethical GPL enforcement that will help contain the damage of un-Principled enforcement.

Compliance with FOSS licenses is not optional. Failure to follow the terms of the GPL erodes software freedom and the integrity of our technology. Copyleft is both a legal requirement and an essential community norm that companies must follow if they wish to use GPL’d code. Copyleft assures fair and equal rights that allows both competition in business and an equal playing field for hobbyists. Conservancy remains steadfast in its commitment to this equal playing field, and will continue our compliance work so that developers can focus on writing new software to advance software freedom. We invite more contributors wishing to join our coalition to partner with us in the next steps of this work. Interested contributors can contact us via email.