
Hellwig Will Appeal VMware Ruling After Evidentiary Set Back in Lower Court - Rondom
http://sfconservancy.org/news/2016/aug/09/vmware-appeal/
======
Tomte
Main takeaway: Hellwig did these things to try and establish authorship:

a) promise that he is author -- court says "such a simple claim is not enough"

b) point towards the git repository where everybody can see his contributions
-- court says "you have to prove that you're author, not just give
instructions how other people could prove it"

c) say that kernel version x.y.z is "closest" to VMware software -- court says
"don't just throw a version string at us, show with concrete examples which
code passages have been lifted"

And some more things along these lines.

I'm really confused how Hellwig's lawyer even tried that. Even to a layperson
it's obvious that "I won't prove my authorship, but if the court wishes to do
itself, it will be easy" won't fly.

~~~
tobias3
He also gave them blame files as pdfs. But then the court complains about them
being unconnected to the VMWare software.

My takeaway is that this needs a magnitude more effort. I guess one has to
manually go through the history and filter out all non-copyright changes (such
as white space changes) and then come up with a measure of authorship. The
court also needs significantly more hand-holding. I don't know if it is normal
that they need to be spoon-fed everything.

~~~
Tomte
It's not about spoon-feeding, it's about civil procedure.

Unlike criminal procedure, where the court has an obligation and will discover
evidence and other facts pertaining to the alleged crime sua sponte, in civil
cases the court MUST NOT discover evidence by itself.

For example, an acquaintance of mine who was a judge at the time, told me
about one of the cases he presided on, where the statute of limitations on the
claim had long run out. But the defendant's [edit: correction] lawyer hadn't
noticed it.

He went so far as to inquire several times when exactly the action had been
(including nudges like "that was 2001, we have 2016 now, so it's been about
fifteen years"), and even that was very much borderline.

The lawyer didn't realize that he only had to mutter the words "statute of
limitations" and the case would have been thrown out seconds later, and so the
plaintiff won.

~~~
gknoy
I find it amazing that the law prohibits a judge from saying, "The statute of
limitations period means that this cannot be valid," and throw the case out,
but rather requires one of the lawyers to do so.

~~~
Tomte
Yes, it sounds strange.

I've just looked up in a legal commentary, and it isn't as clear-cut as my
acquaintance told it to me.

Baumbach/Lauterbach/Hartmann say that the judge may broach the issue if the
defense has expressed doubts about the time-line of actions, but that it must
not reach the level of advice.

Other commentaries say that the judge must not broach the issue.

And there is even a cool minority opinion in NJW (Schneider), saying that the
declining quality of jurists' training may lead to the judge having to protect
the client from his own lawyer. ;-)

~~~
ethbro
It makes some sense as judge as arbiter and interpreter of law, no? If a judge
were to say "You should argue this" then the expectation that he or she would
be predisposed to finding that a valid claim would be pretty apparent.

I can see examples where this would lead to slippery slopes in both the
defendant's and plaintiff's favors.

------
sciurus
An English translation of the ruling is available at
[http://bombadil.infradead.org/~hch/vmware/Judgment_2016-07-0...](http://bombadil.infradead.org/~hch/vmware/Judgment_2016-07-08.pdf).
The reasons for dismissal are explained in detail starting at page 16. The
judges leads in to them with this statement:

"Nonetheless, these questions (on which the legal interest of the parties and
their counsel presumably focus) can and must remain unanswered. This is
because the very first requirement for conducting an examination, namely that
code possibly protected for the Plaintiff as a holder of adapter’s copyright
has been used in the Defendant’s product, cannot be established. This is still
true even after taking into account the Plaintiff’s subsequently admitted
procedural document dated 29.04.2016, in which he (after the deadline had been
extended) had a further opportunity to enter a pleading on the reservations in
this respect which the court had already expressed at the hearing."

So it sounds like the judge communicated that he was concerned about the
evidentiary standards and gave Hellwig a chance to respond but still wasn't
satisfied.

------
solarengineer
The earlier FAQ on the topic: [https://sfconservancy.org/copyleft-
compliance/vmware-lawsuit...](https://sfconservancy.org/copyleft-
compliance/vmware-lawsuit-faq.html)

------
spoondan
This page [https://sfconservancy.org/copyleft-compliance/vmware-code-
si...](https://sfconservancy.org/copyleft-compliance/vmware-code-
similarity.html) attempts to back up Hellwig's claims using analysis from
CCFinderX. However, it seems to make an error in establishing baselines when
it states that, "Next, we compared the source code of the Linux Kernel 4.5.2
to the LLVM+Clang system, version 3.8.0. These two projects are each a large
program written in the C programming language, but they are not known to
actively share code."

LLVM+Clang are written in modern C++, not C. It's unclear to me if a
mechanical translation from modern C++ to C will rank as similar, despite it
clearly being copying. I suspect it would, but I think the cross-language
comparison is a weakness in this demonstration. Combined with the reported
failure to meet evidentiary standards, it suggests some real room for
improvement in pursuing these cases.

------
tobias3
My main takeaway is that the GPL is very hard to enforce (i.e. lots of money
and effort) if you do not have a copyright assignment strategy such as the
FSF.

~~~
jordigh
Yeah. The annoyance of having to give copyright assignment to the FSF to have
patches accepted to Emacs probably helps a lot that nobody has tried recently
to violate its copyleft.

------
xenophonf
What are the issues here? Why doesn't VMware just publish complete sources?
Have they segregated their proprietary "stuff" (whatever that is/does) into
separate kernel modules, and if so, would Hellwig's suit force them to publish
it? IIRC, Linux is only used for the service console, running under the
hypervisor.

Updated to add: I'm reading through the FAQ now, but I still don't understand
why VMware is taking the stance they are.

~~~
davexunit
>Have the segregated their proprietary "stuff" (whatever that is/does) into
separate kernel modules, and if so, would Hellwig's suit force them to publish
it?

This is the crux of the issue that is being disputed. There is no
"segregation" in Linux. A kernel module is a derived work of the kernel, and
thus users are entitled to receive the source code for the entire work under
the GPL version 2. VMWare cannot add in proprietary features.

~~~
grabcocque
It's not entirely clear with the GPLv2 that that's the case. The FSF claims
that because modules are loading into the address space of the kernel that
makes them an integrated part of a single program and not mere aggregation,
and are therefore covered by the GPLv2's restrictions as a derivative work.

It should be noted, however, that this is merely the FSF's opinion, and this
has never been definitively legally established.

The GPLv3 was designed to, inter alia, eliminate such ambiguities, but added
so much complexity it never really caught on outside the GNU project.

~~~
davexunit
>It's not entirely clear with the GPLv2 that that's the case.

I hear this argument a lot. It is certainly _intended_ to be the case as it's
the whole point of the GPL. VMWare is, at the very least, in clear violation
of the spirit of the GPL. If it's not the case, as ruled by German courts,
then the GPLv2 is useless and free software will be in deep trouble. In the US
the courts have found that GPLv2 is pretty clear on this (and judges don't
like those that try to find loopholes) with successful compliance cases like
the Linksys WRT54G router firmware.

>this is merely the FSF's opinion

It's a pretty important opinion since they wrote it and know what the intent
of the legalese was.

~~~
cmurf
Something seems specious where proof of authorship is required for standing in
a case. The injured party may not be the copyright holder as much as it is the
entire community or even other copyright holders.

~~~
rhizome
Not authorship per se, but copyrights to source code was pretty much the
entire linchpin of SCO v. IBM.[1]

I think I remember SCO trying your argument at some point (as they were wont
to do), and if so it obviously didn't work. The law generally doesn't support
being offended on behalf of someone else. What aspect do you think is
specious?

1\.
[https://www.techdirt.com/articles/20070810/184153.shtml](https://www.techdirt.com/articles/20070810/184153.shtml)

------
davexunit
This is an unfortunate turn of events, but I'm hopeful that the appeal will be
successful.

------
ashitlerferad
Previous discussions:

[https://news.ycombinator.com/item?id=9151799](https://news.ycombinator.com/item?id=9151799)
[https://news.ycombinator.com/item?id=9156644](https://news.ycombinator.com/item?id=9156644)
[https://news.ycombinator.com/item?id=10465435](https://news.ycombinator.com/item?id=10465435)
[https://news.ycombinator.com/item?id=9290149](https://news.ycombinator.com/item?id=9290149)

------
kordless
VMWare can go fuck themselves. Infrastructure is meant to be open, trustworthy
AND scalable. Current infrastructure software models don't directly benefit
everyone using the software. The models benefit the company, however, but run
counter to improving trust with consumers.

------
martingxx
Please support sfconservancy.org if you can afford to. They do great work.

(fwiw, I have no connection to sfconservancy - I just think they are great)

~~~
bkuhn
Thanks so much for your kind words to Conservancy, martingxx and davexunit.
Here's the Conservancy Supporter link for those who can afford to help:
[https://sfconservancy.org/supporter#annual](https://sfconservancy.org/supporter#annual)

As I said in my LCA 2016 talk, litigation is expensive but it's absolutely an
essential component now of standing up for the GPL:
[https://sfconservancy.org/blog/2016/aug/04/lca-2016/](https://sfconservancy.org/blog/2016/aug/04/lca-2016/)

