Why We Should Welcome and Support This GPL Lawsuit

Last week, we had some rare and important news:

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.

Despite those long and repeated attempts to arrive at an amicable solution, it seems VMware wants to try to tough it out:

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.

Full technical details of the problem are provided in a useful FAQ on the lawsuit, which also explains why it is being brought in Germany:

Copyright infringement claims can be brought anywhere that distribution of the copyrighted works occur. VMware distributes ESXi throughout the world, but Germany is close to Christoph's home and his lawyer was available to do the litigation work there. Finally, historically, Mr. Jaeger's cases in Germany have usually achieved worldwide compliance on the products at issue in those cases.

Jaeger is probably the world's leading lawyer for GPL compliance:

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.

As that makes clear, this is big news, involving the top people in this field. It has come about after years of attempts to avoid taking VMware to court - a fact which shows that this has been undertaken only as a last resort. That's all as it should be - free software should be encouraging compliance, and giving people time to do that, rather going into corporate litigation mode. But it's clear that VMware has had ample time to understand and comply, and has no intention of doing so.

Thus this lawsuit serves two purposes. One is obtain compliance from a large company with plenty of resources, in order to demonstrate that it is not above the law, and that it can't simply ignore polite requests to comply with the licence of code that it uses. The other, is to confirm in the courts that the GPL licence applies to the present situation, which involves the contested issue of combined/derivative works:

This case is specifically regarding a combined work that VMware allegedly created by combining their own code (“vmkernel”) with portions of Linux's code, which was licensed only under GPLv2. As such, this, to our knowledge, marks the first time an enforcement case is exclusively focused on this type of legal question relating to GPL. However, there are so many different ways to make combined and/or derivative works that are covered by GPL that no single case could possibly include all such issues.

Both purposes are less about resolving the current infraction and more about establishing important precedents for the future. Here's why that's so important:

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.

In other words, if an example is not made of VMware and its intransigence in this case, the danger is that GPL violations will multiply uncontrollable, undermining the very foundation of free software. That's why it is vital that this suit can be pursued fully, and to do that, the Software Conservancy needs funds. Here's the good news on that front:

We are excited to announce an anonymous match for this campaign, where every dollar donated will be matched up to $50,000. Please donate now: by becoming a Conservancy Supporter or via donate link on the right.

FWIW, I've made a contribution, and I urge you to give what you can, no matter how small.

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