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

Tue Aug 9 13:21:26 UTC 2016

URL: https://sfconservancy.org/news/2016/aug/09/vmware-appeal/

             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 comparison 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.

Relevant links:

  http://bombadil.infradead.org/~hch/vmware/2016-08-09.html
  http://bombadil.infradead.org/~hch/vmware/Judgment_2016-07-08.pdf
  https://sfconservancy.org/copyleft-compliance/vmware-code-similarity.html
  https://sfconservancy.org/copyleft-compliance/vmware-lawsuit-faq.html
  http://www.archive.org/download/gov.uscourts.nysd.355978/gov.uscourts.nysd.355978.131.0.pdf
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