Appeal Moving Forward in GPL Compliance Suit Against VMware

[Deb Nicholson]

URL: https://sfconservancy.org/news/2018/nov/29/gplappeal/

Conservancy dedicates itself to fighting for software freedom for as
long as it takes. GPL enforcement requires steadfast, unwavering
diligence. Two years have passed since Christoph Hellwig announced his 
intention to appeal the Hamburg District Court's decision, and more
than three and a half years have passed since Conservancy announced its
financial support for this lawsuit. Christoph's case is in Germany
against VMware for their failure to provide the complete source code of
the kernel they distribute, which is covered by the GPL and based on
Linux. The lower court dismissed the case as a result of evidentiary
rules and likely an incomplete understanding of the documentation of
the code in question. Yesterday, the German Court of Appeal held the
first hearing on the appeal.

As staunch proponents of community-driven enforcement, Conservancy
remains committed to supporting Hellwig's case for as long as it takes.
The hearing yesterday was a tiny step in a long process toward
resolving this issue, and, as we understand the situation, nothing is
yet decided. As courts always do, they encouraged the parties to settle
their dispute out of court. VMware could still choose to do the right
thing here, admit that they did not meet the terms of the GPL and
acquiesce to Christoph's request. The Courts have set a deadline of
January 24, 2019 for settlement. If Christoph and VMware cannot reach a
settlement by then, the Court is expected to adjudicate the appeal.

Linux's license, GPL version 2, was specifically designed to defend the
rights of developers and users in this situation; the GPL forbids
companies from combining their own proprietary software with GPL'd
software. Conservancy discovered that Christoph's code was combined in
that manner, and that Christoph's GPL'd code is an essential part of
VMware's kernel. Christoph confirmed Conservancy's compliance
conclusions and undertook enforcement efforts with legal representation
from Till Jaeger.

VMware incorporated, into a larger proprietary work, Christoph's GPL'ed
code from the Linux project. VMware continues to infringe Christoph's,
as well as many individuals' and companies', Linux copyrights. Among so
many, Christoph is the developer who was willing to stand up and demand
that VMware stop their copyright infringement. Christoph has rightly
asked that VMware fulfill its obligations and comply with the terms of
the license. His tenacity in this matter is heroic and he deserves the
unceasing support of the community in this matter.

Conservancy, a public charity focused on ethical technology, is home to
over fifty member projects dedicated to developing and promoting free
and open source software. Conservancy acts as a corporate umbrella,
allowing member projects to operate as non-profit initiatives without
having to manage their own corporate structure and administrative
services. Conservancy is also the only charity currently pursuing
enforcement of Linux's license for the public good. 
Please consider financially supporting our work on GPL enforcement and 
fiscal sponsorship today.

For more background on this action, please see our FAQ.

-- 
Deb Nicholson <deb at sfconservancy.org>
Software Freedom Conservancy
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