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VMWare Taken to Court Over GPL Violation

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Re: VMWare Taken to Court Over GPL Violation

#241

Post by yaeger »

ngoldbaum wrote: post #36
spullara wrote: post #31

Any litigation of the GPL is more than likely more dangerous for the GPL than it is for the companies. A relaxing of the understood requirements of using and distributing GPL code could cause an avalanche of fall out from formerly protected code becoming less protected. If I was this organization I would only risk a lawsuit of something that would have profound positive consequences for open source. VMware's risk is…

There is strong precedent in German courts for enforcing GPL violations. Probably stronger than in any other country's legal system. The Software Freedom Conservancy is probably the organization least likely to screw up the decision to enforce the GPL through the courts.

Except that the German system by large does not use precedence at all. At best prior cases can be an aid in an ongoing court case. At worst, prior cases are ignored completely and only what the law says will be taken into account by the courts.

Re: VMWare Taken to Court Over GPL Violation

#242

Post by renox »

ChuckMcM wrote: post #104
nordsieck wrote: post #46

Earlier quoted context omitted.

I doubt that it'll come to that. There are some really nasty consequences of being found to violate the GPL: 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License... From what I understand, there is no obvious…

That would be an interesting result. To my knowledge the GPL (any version) hasn't actually been litigated to the point of a published decision (would love to hear that it had). That said, (and continuing with my possibly incorrect assumption that the GPL hasn't been litigated) if it does get decided that this remedy can be enforced by the license holders through the court, I expect it will create the largest software…

You forget something: most enterprise SW is for internal use only, so they don't and won't care one bit about GPL's related ligations.

Using GPL SW in a product sold to clients is a different issue but in my (big) enterprise the GPL is a well-known topic: there are internal guidelines about what you can do and what you can't do with GPL SW and who you have to contact when you want to use GPL SW for clients products so that he can check that you're doing the right thing.

Re: VMWare Taken to Court Over GPL Violation

#243

Post by makomk »

nailer wrote: post #234
delsarto wrote: post #149

Earlier quoted context omitted.

I don't think it is as clear cut at all, but that makes it much more interesting. I left a comment there, but it bears some repeating I think ESXi's kernel does not bootstrap itself from Linux at all. There is no linux kernel as such [1] ESXi does reuse linux kernel drivers ... a lot of them. But the way this happens is through a well-defined API provided by (proprietary) vmkernel called vmkapi. What you are seeing i…

Re: [1] There's an argument that ESXi was released to handle these concerns, which predate ESXi's release. I ran venturecake which first published the story, showing how the Linux kernel started vmkernel, not the other way around. Proprietary kernel modules are considered derived works unless they can run independently (eg, nvidia.ko isn't generally considered to be a derived work because it's largely code ported fro…

I dunno, a bootloader seems like the most clear-cut example of something not being a derived work you could get - it doesn't care about the code being bootloeaded and vice-versa, and the API between the two is about as trivial as it can get. What matters according to the GPL isn't whether the code runs on other platforms but how deeply intertwined it is with the kernel; for most Linux drivers, whether it runs on other platforms is a good rule of thumb for determining this, but it kind of breaks down for ESX.

Also, "retrospectively making something portable doesn't change it's previous status as a derived work" was if I'm not mistaken SCO's argument for why it should be illegal for customers to run software they'd developed on SCO Unix under Linux. It's not something we should be supporting because it'd a really dangerous tool for locking users into a particular OS. (Fortunately, SCO lost.)

Re: VMWare Taken to Court Over GPL Violation

#244

Post by caf »

geofft wrote: post #7
jallmann wrote: post #2

Is there any information about why VMware thinks they are not bound by the GPL? Curious whether they have a technical justification, rather than simply being a blatant licensing violation.

I'm not fully up-to-date on this case, but there is a bit of wiggle room on what counts as a derivative work, even in kernelspace. My favorite example is OpenAFS. Development of the AFS kernel module started in 1983, so the code is a decade older than Linux itself. So it's hard to argue that openafs.ko is a derivative work of Linux, and since it continues to run on several kernels other than Linux (Darwin, Solaris, N…

To continue the OpenAFS example though, while OpenAFS.ko itself considered as a standalone item might well be not a derivative work, that doesn't mean that you if distributed a work comprising the Linux kernel combined with OpenAFS that that combined work might not be a derivative (of both the Linux kernel and OpenAFS).

In the same way that if I took some pictures I drew back in 1960 and used them to illustrate a copy of Harry Potter, I've created a work that's a derivative of both my original picture collection and Rowling's work.

Re: VMWare Taken to Court Over GPL Violation

#245

Post by hugoroy »

Sanddancer wrote: post #224
rnovak wrote: post #168

Earlier quoted context omitted.

From reading the linked article, it read to me like the complaint asserts that VMKernel itself is a violation of the GPL. If I'm wrong, please feel free to correct me, but these statements seems to point in this direction Conservancy discovered that VMware had failed to provide nor offer any source code for the version of BusyBox included in VMware's ESXi products But ESXi is not a purely open-source product; it also…

This sounds more like Oracle vs Google regarding Java, where VMWare, like Google, is stating that APIs are not copyrightable, and the SFC, like Oracle, is claiming that even those APIs are copyrightable.

There is a huge difference: in this case the Vmware product does include linux kernel code. So there's definitely some reproduction and distribution of copyrighted parts even excluding the use of APIs.

Re: VMWare Taken to Court Over GPL Violation

#246

Post by hugoroy »

onestone wrote: post #174
hga wrote: post #116

Earlier quoted context omitted.

" The business risk would become too great that they might be litigated by a rival into inoperation. " Only the owners of a copyright have standing to sue, so I think the complete version of your concept fails unless, like in this case, the copyrights are held by many people instead of being assigned to one person or organization. I also can't imagine that a lot of companies haven't considered this risk, it hardly ma…

> Only the owners of a copyright have standing to sue That's not true, at least in some countries. For example, see this case in France from 2009: http://arstechnica.com/information-technology/2009/09/big-gp... > "We've long said the GNU GPL is enforceable, and of course we're pleased to see another court reaffirm that fact," said FSF France president Loic Dachary in a statement. "It's a commonly held belief that onl…

This interpretation of the decision is wrong, and I think this is also not a right interpretation of copyright and of the GPL.

However, I do think that parties receiving GPL software also have standing to sue, not just authors.

And this may also be true in the US: see for instance one of the decisions in Versata v. Ameriprise where the court considered GPL to create contractual obligations towards third party beneficiaries -- i.e. towards people receiving the code. That whole case has been settled out of courts but that's still an interesting decision (and to my knowledge, this decision had not been further contradicted by upper courts so it is still interesting).

Re: VMWare Taken to Court Over GPL Violation

#247

Post by hugoroy »

DannyBee wrote: post #186
nordsieck wrote: post #46

Earlier quoted context omitted.

I doubt that it'll come to that. There are some really nasty consequences of being found to violate the GPL: 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License... From what I understand, there is no obvious…

"there is no obvious way to re-gain a license to GPL'd code once it's been terminated" This is false for GPLv2, sadly, despite people wanting it to be so. GPLv2 says "6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose a…

Section 6 does not say that at all.

"Each time you redistribute the Program"

In this sentence "You" would be VMWare, not the authors of Linux.

"the recipient automatically receives a license from the original licensor to copy"

the Linux license is between Linux authors and recipients of VMWare software.

So section 6 does not say Vmware gets a new license each time they get a copy of Linux.

Section 6 just makes sure that even if someone along the chain of distribution of the GPL software fails to comply, not all receiving parties down the path are automatically in failure to comply.

Re: VMWare Taken to Court Over GPL Violation

#248

Post by the_mitsuhiko »

belorn wrote: post #237
the_mitsuhiko wrote: post #200

Earlier quoted context omitted.

> [...] the argument parent post made is that the threat of enforcing third-party licenses will make every company switch to self-production only. Note this problem only applies (in practice) to GPL licenses which are explicitly disallowed in all gaming environments I have encountered. As such the problem is moot. There are lots of Open Source code in computer games, just not GPL. It's a non issue.

How would this problem only apply to GPL? If you do not give the 5% revenue to unreal when using their engine, I am sure they will sue. A company can not pick and choose which license agreement to follow and which to ignore, or they risk inoperation from lawsuits. In practice, license conditions are balanced to the interest of the company. Some might be perfectly fine with 5% revenue losses in order to pay for a engi…

> How would this problem only apply to GPL?

Because not many other licenses like GPL "spread" to the entirety of the project. Sure, you can draft another license like this, but out of the popular ones there really is only the (A)GPL which does that.

Re: VMWare Taken to Court Over GPL Violation

#249

Post by hugoroy »

DannyBee wrote: post #227
rosser wrote: post #208

Earlier quoted context omitted.

They have a great deal to lose. The consequences of being found to have violated the GPL include having your license to use GPL'ed code revoked .

Again, no, it doesn't in the case of GPLv2 code (which is what we are talking about). See my other comment. The second they came back in compliance, they could redownload the exact source they copied, from wherever they got it, and they'd have a fresh, brand new license, with no problems. GPLv3 fixed this "loophole". In fact, you can see what others have attempted (and failed) to do to try to prevent this "loophole"…

You're making this "loophole" up.

See https://news.ycombinator.com/item?id=9156539

Re: VMWare Taken to Court Over GPL Violation

#250

Post by maxerickson »

hugoroy wrote: post #247
DannyBee wrote: post #186

Earlier quoted context omitted.

"there is no obvious way to re-gain a license to GPL'd code once it's been terminated" This is false for GPLv2, sadly, despite people wanting it to be so. GPLv2 says "6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose a…

Section 6 does not say that at all. "Each time you redistribute the Program" In this sentence "You" would be VMWare, not the authors of Linux. "the recipient automatically receives a license from the original licensor to copy" the Linux license is between Linux authors and recipients of VMWare software . So section 6 does not say Vmware gets a new license each time they get a copy of Linux. Section 6 just makes sure…

So what happens if VMWare downloads a new copy of the software from some third party (Redhat or whatever)?
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