
Report from the VMware GPL court hearing - walterbell
http://laforge.gnumonks.org/blog/20160225-vmware-gpl/
======
osivertsson
Some quotes that I feel shows VMware's attitude towards the software freedom
community:

 _[...] the VMware defense in claiming that overall, they could only find very
few functions that could be attributed to Christoph, and that this may
altogether be only 1% of the Linux code they use in VMware ESXi._

 _At times their lawyers made statements like linux is this small yellow box
in the left bottom corner (of our diagram). So of course already the diagrams
are drawn in a way to twist the facts according to their view on reality._

~~~
delsarto
What did you expect them to say? Linux is a huge part of what we do?

Here's how I see it. Vmkernel has a driver API. It's documented, versioned,
comes with a ddk and has drivers written directly to it.

As we all know, Linux basically has driver apis. They are not as explicit as
the vmkernel driver apis; they are not versioned and deliberately unstable -
but if you've written a line of kernel code you know they are there.

Now it seems it is OK to ship a binary blob driver that links against Linux
driver apis. Nvidia, ati, lots of arm type boards and now zfs. I say seems
because, well, so far everyone has pretty much gone along with it. In some of
the comments on zfs, I see people go as far to say that the Linux driver APIs
are tacitly considered lgpl (ie. similar to why you can ship a binary against
glibc - although obviously glibc has made the exception explicit)

Can I do the reverse? Implement a GPL licensed wrapper that converts the Linux
driver API to one provided by a binary blob (ie. what vmklinux does talking to
vmkernel) and thus use the drivers?

I don't know, I think it's a good question to find an answer to.

~~~
jordigh
_> Can I do the reverse? Implement a GPL licensed wrapper that converts the
Linux driver API to one provided by a binary blob (ie. what vmklinux does
talking to vmkernel) and thus use the drivers?_

The GPL wrapper method has long been considered to be a subterfuge that GPL
lawyers think judges would be able to see through.

[https://www.gnu.org/licenses/gpl-
faq.html#GPLWrapper](https://www.gnu.org/licenses/gpl-faq.html#GPLWrapper)

As to the rest of your questions, this is how Conservancy answers them. The
situation is more nuanced for vmkernel as compared to the nvidia blob.

[https://sfconservancy.org/copyleft-compliance/vmware-
lawsuit...](https://sfconservancy.org/copyleft-compliance/vmware-lawsuit-
faq.html)

~~~
bsder
> The GPL wrapper method has long been considered to be a subterfuge that GPL
> lawyers think judges would be able to see through.

However, the GPL lawyers don't want to press the point too hard as they could
easily lose a lot of hardware that would quickly render Linux useless.

If nVidia, for example, got scorched by the GPL and started releasing binary-
only drivers only for FreeBSD, Linux would start losing a lot of corporate
seats.

~~~
karltk
Not sure I'm able to follow your logic here, esp regarding "quickly render
Linux useless" and "losing a lot of corporate seats".

Linux is extremely pervasive by now: embedded systems, phones,
laptops/desktops, servers, super computers. Let's say NVIDIA boycotted Linux
on account of the GPL. No more NVIDIA for Linux-based embedded systems,
phones, laptops/desktops, servers, supercomputers. What then?

It certainly wouldn't make a dent in the embedded space, where NVIDIA hardly
has any presence at all, even if you do include NVIDIA Shield. On the phone
side, how many of the 1+ billion Android devices use NVIDIA chips? 1 million?
2?. It certainly wouldn't make a dent in the server space -- the market for
GPGPUs on regular servers is rather tiny. In the supercomputing space, there's
a trend towards more GPGPU capabilities, so here it might actually make a
difference for some. Still, seems somewhat unlikely that lack of NVIDIA
support would "quickly render Linux useless" as a supercomputing OS...

That leaves the laptop/desktop space. Linux has around 2% market share on the
laptops/desktops. Most people in that space who need rock-solid 3D performance
for CAD/CAM work are already using Windows. Sure, there are still die-hard
NVIDIA Linux users left, even after everyone decided to transition to MacBooks
and OSX for development, but their number hardly qualify as "lots of corporate
seats".

All of that being said, I'd love for additional uptake of the *BSDs, in
addition to the ~30 million PS4s running FreeBSD :)

~~~
berkut
Most independent people who need 3D performance for CAD might be using
Windows, but the VFX industry need 3D performance on the desktop and they
heavily use Linux and NVIDIA (at least at the high level). AMD is almost
nowhere to be found - it's all CUDA (for any GPU compute stuff) and NVIDIA's
drivers.

------
tinco
I am not really up to date on this case. Why is Christian sueing for just the
copyright infringement of his contributions? It sounds like this 'fading'
concept might really put a stop to this whole trial. Wouldn't it be possible
for Christian to represent more Linux developers so their collective work sits
comfortably above 1% of Linux?

~~~
tkinom
His lawyer should probably make it a class action - represent the "Linux
Kernel Developers" class. That probably cover 100% of the code.

~~~
jo909
There is no class action in german law. Everybody has to sue on their own
(with very few exceptions), but of course there is no point in having (and
funding) multiple identical cases unless this case gets dismissed for a
technicality like the fading issue.

~~~
germanier
Just to add: If similar lawsuits are anticipated or the question is seen as
important courts usually give they opinion on what criteria to use to judge
other cases. So even if this one is lost due to technicalities we will likely
learn more about this legal question.

------
cetra3
I would be interested to know if there are any other court cases that have had
similar outcomes in other countries? Or is this really a first for GPL

~~~
the_mitsuhiko
As far as I know there are no court cases involving dynamically linked modules
yet.

------
vessenes
This is just an excellent summary of events so far, and the court proceedings.
I'm looking forward to more analysis as the case proceeds. It's interesting to
come at it from a long-time Linux user perspective -- it seems
incontrovertible that GPL is being violated to me -- so I'm most curious how
this winds its way through the courts.

------
staticautomatic
It is perhaps unsurprising that the American lawyer is the same one who
represented Oracle in the first round of the Oracle v. Google litigation.

~~~
icebraining
Yes, it's not very surprising that lawyers versed in copyright and open source
get a lot of work in that area.

------
belorn
It will be interesting to see how the court will determine if its one work or
two separate works, and if they will look at other copyrighted media. There is
already a rather established model for music video, where even if you have
rights to distribute a particular song, you need additional rights to adapt
the music to moving images. On the other side of the argument, there is cases
that has addressed compatibility. There were for example gaming consoles that
had unlicensed third-party modules that courts deemed to be non-infringing.

A key argument I was missing in the article here was the question about market
impact. In every court case I have read that talked about derivative works,
they always considered the impact that the claimed infringement has on the
original work. Court seems to have a historical viewed that copyright is there
to protect the authors, and thus leans towards decision that minimize harm. In
the case of VMware, it would be interesting to see such arguments from both
parties.

------
justinh
The precursor to ESXi, ESX, used even more Linux source code. Is that brought
up in the lawsuit?

