Conservancy Announces Funding For GPL Compliance Lawsuit

[Software Freedom Conservancy]

URLs:
 This Announcement:  https://sfconservancy.org/news/2015/mar/05/vmware-lawsuit/
 Lawsuit FAQ:        https://sfconservancy.org/linux-compliance/vmware-lawsuit-faq.html
 Appeal for Support: https://sfconservancy.org/linux-compliance/vmware-lawsuit-appeal.html
 Twitter:            https://twitter.com/conservancy/status/573523944248066048
 Pump.io:            https://identi.ca/conservancy/note/0ThEKgFeSHuWcaxT6Vv8jg
 LWN Coverage:       http://lwn.net/SubscriberLink/635290/6f86eee2e7f27340/
 FSF's Statement
       of Support:   https://fsf.org/news/conservancy-and-christoph-hellwig-gpl-enforcement-lawsuit


          CONSERVANCY ANNOUNCES FUNDING FOR GPL COMPLIANCE LAWSUIT
                 VMware sued in Hamburg, Germany court
              for failure to comply with the GPL on Linux

Software Freedom Conservancy announces today Christoph Hellwig's lawsuit
against VMware in the district court of Hamburg in Hamburg,
Germany. This is the regretful but necessary next step in both Hellwig
and Conservancy's ongoing effort to convince VMware to comply properly
with the terms of the GPLv2, the license of Linux and many other Open
Source and Free Software included in VMware's ESXi products.

Hellwig, a key Linux kernel developer and one of the earliest members of
Conservancy's GPL Compliance Project for Linux Developers, has publicly
denounced VMware's misuse of GPL-licensed code since 2007. In 2011,
Conservancy discovered that VMware had failed to provide nor offer any
source code for the version of BusyBox included in VMware's ESXi
products (as required by BusyBox's license, GPLv2). Conservancy began in
early 2012 negotiations with VMware to seek compliance on all GPL'd
components in the ESXi project. Progress was slow through 2012 and 2013.

Meanwhile, Hellwig joined Conservancy's GPL Compliance for Linux
Developers in late 2012. Hellwig assisted Conservancy in analysis of the
non-compliant releases of ESXi that VMware provided. After studying
these materials over a long period, it became apparent that VMware's
current ESXi products infringed many of Hellwig's own copyrights, due to
VMware's failure to comply with Linux's license, GPLv2.

During Hellwig's investigations, Conservancy continued to negotiate with
VMware. Sadly, VMware's legal counsel finally informed Conservancy in
2014 that VMware had no intention of ceasing their distribution of
proprietary-licensed works derived from Hellwig's and other kernel
developers' copyrights, despite the terms of GPLv2. Conservancy
therefore had no recourse but to support Hellwig's court action.

In addition to other ways VMware has not complied with the requirements
of the GPL, Conservancy and Hellwig specifically assert that VMware has
combined copyrighted Linux code, licensed under GPLv2, with their own
proprietary code called “vmkernel” and distributed the entire combined
work without providing nor offering complete, corresponding source code
for that combined work under terms of the GPLv2. Hellwig is an extensive
copyright holder in the portions of Linux that VMware misappropriated
and used together in a single, new work without permission.

Hellwig's legal counsel in this German lawsuit is Till Jaeger of JBB
Rechtsanwälte. Best known for his work representing Linux developer
Harald Welte, Mr. Jaeger has brought several lawsuits regarding GPL
violations. Both Conservancy and Hellwig are privileged and honored that
he has agreed to serve as Hellwig's lawyer in these matters.

Both Hellwig and Conservancy do not at this time wish to comment further
on the detailed facts of this lawsuit, as they relate to ongoing
litigation. However, Conservancy will maintain a a Frequently Asked
Questions page regarding Hellwig's lawsuit against VMware and will
update that FAQ list when our legal counsel deems such advisable.

Commenting generally on the issue of GPL enforcement, Bradley M. Kuhn,
President and Distinguished Technologist of Conservancy, stated: “The
prevalence and sheer volume of GPL violations has increased by many
orders of magnitude in the nearly two decades that I have worked on
enforcement of the GPL. We must make a stand to show that individual
developers and software freedom enthusiasts wish to uphold copyleft as a
good strategy to achieve more access to source code and the right to
modify, improve and share that source code. I ask that everyone support
Conservancy in this action.”

Grant Likely, Linux kernel developer who also serves as chair of the LF
Technical Advisory Board, added: “GPL licensing is a cornerstone part of
Linux development. The ‘fair's fair’ nature of copyleft licensing is in
large part why Linux has been overwhelmingly successful, and has created
a huge ecosystem of companies benefiting from Linux. Our entire
ecosystem is undermined when the sharing principles encoded in the GPL
license are ignored. These principles ensure that companies and
individuals can continue to share and collaborate on Linux to the
benefit of everyone. By ignoring these principles, VMware risks damage
to the very community on which it depends, and I look forward to this
long standing complaint being swiftly resolved.”

Conservancy views litigation as a last resort, and supports such action
only after all other avenues have been exhausted. Conservancy and
Christoph urge those who support this this action — and who support GPL
compliance in general — to donate generously to Conservancy's GPL
Compliance Project for Linux Developers. More information on
Conservancy's campaign to fund this lawsuit can be found in the
aforementioned FAQ list.

                   About Software Freedom Conservancy

Software Freedom Conservancy is a public charity that promotes,
improves, develops and defends Free, Libre and Open Source software
projects. Conservancy is home more than thirty software projects —
including Git, Inkscape, Samba, Wine, Selenium, the Linux Compliance
project, PyPy, and Sugar Labs — each supported by a dedicated community
of volunteers, developers and users. Conservancy's projects include some
of the most widely used software systems in the world across many
application areas, including educational software deployed in schools
around the globe, embedded software systems deployed in most consumer
electronic devices, distributed version control developer tools,
integrated library services systems, and widely used graphics and art
programs. A full list of Conservancy's member projects is
available. Conservancy provides these projects with the necessary
infrastructure and not-for-profit support services to enable each
project's communities to focus on what they do best: creating innovative
software and advancing computing for the public's benefit.

-- 
Support Conservancy Now: https://sfconservancy.org/supporter/