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VMWare Taken to Court Over GPL Violation

sfconservancy.org

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Re: VMWare Taken to Court Over GPL Violation

#271

Earlier quoted context omitted.

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

They do not get a license, so they couldn't even legally download the new copy. It's the same as downloading pirated Windows (except that when downloading pirated Windows the hosting site shares the blame with the downloader, of course).

Sorry, but you are completely and utterly wrong. I wish you weren't.

Section 6 is amazingly clear, and this is completely and totally unambiguous.

I don't remember if Eben disagrees (I actually don't think he does, last I remembers), but it's generally accepted that this is the likely outcome.

Re: VMWare Taken to Court Over GPL Violation

#272

Earlier quoted context omitted.

They do not get a license, so they couldn't even legally download the new copy. It's the same as downloading pirated Windows (except that when downloading pirated Windows the hosting site shares the blame with the downloader, of course).

They could still download a new copy, but they would not have the right to modify, reproduce and distribute that copy.

Sorry, but no. They get all the rights. The rights auto-terminate if they are still violating the license (so they lose that license). If they have cleaned up their act, they gain all rights.

I can't even see how you would come to the conclusion you did, given it 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. "

IE it very specifically says they get the rights you claim they don't.

Re: VMWare Taken to Court Over GPL Violation

#273

Earlier quoted context omitted.

Why does only section 4 apply and not section 6? Is there case law resolving the situation, or are you giving your interpretation, or ...?

All sections apply. It's just that the original comment misunderstood what section 6 says. This is the only way to read section 6 coherently with section 4 and the rest of the license. Sure, it's an interpretation. [edit] the point is: nowhere as clear as the original comment expresses.

You have yet to point out any misunderstanding or why this is wrong past saying "that makes the license crappy in some ways". Which may in fact, be true.

But this is a policy argument, not a legal one, and it will absolutely never win in court over very clear and unambiguous text.

This is, as i said, why GPLv3 was revised here.

Re: VMWare Taken to Court Over GPL Violation

#274

Earlier quoted context omitted.

They could still download a new copy, but they would not have the right to modify, reproduce and distribute that copy.

As far as I know, without a license, you do not even have the right to make a copy (i.e. download) or use it.

Except they get one from section 6.

You are reading who is giving who a license wrong.

Redhat, or whoever they download from, is the "you" there. Not the person who license was terminated.

So let's fill in the blanks:

6. Each time Redhat redistribute the Program (or any work based on the Program), the company who violated the license automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions.

All i did was replace the word "you" and "recipient" with the right people. This is clear and unambiguous. You may not like the result. I actually don't like the result. It does not change the legal meaning, or whether you'd win.

But you don't have to take my word for it, ask another open source lawyer, they'll tell you the same thing i just did.

Re: VMWare Taken to Court Over GPL Violation

#275

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…

Uh, you is whoever they get the program from. It says that. That's what 'each time you redistribute means". It means if i redistribute to someone, this is what happens. Recipient is whoever i redistribute to.

So if redhat redistributes (through their website) to vmware, redhat is you, and vmware is recipient.

You don't get to pin You to be a specific person just because it comes out the way you like it. The license says what it says. (and you can't anyway since this would ruin the rest of the GPL ...)

Re: VMWare Taken to Court Over GPL Violation

#276

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…

DannyBee, I have stayed mostly silent on this thread (given my direct involvement with the Conservancy and the lawsuit in question), but I'd like to draw your attention to copyleft.org's details regarding this issue: https://copyleft.org/guide/comprehensive-gpl-guidech8.html

In particular, take a look at Footnote 4 on that page, which documents state of this situation succinctly.

Re: VMWare Taken to Court Over GPL Violation

#277
post #180
post #6

Earlier quoted context omitted.

I agree. If you want to help the little guy here, then pleased donate to fund the lawsuit: http://sfconservancy.org/linux-compliance/vmware-lawsuit-app...

The sad thing is that in the end you're only helping lawyers.

I would expect that most users of software that violates the GPL are not lawyers, so I don't see how your statement "in the end you're only helping lawyers" could possibly be correct: enforcement to gain compliance is never going to primary help lawyers in an event.

The law is a tool that can be used to achieve certain goals. Similarly, software is a tool that can achieve certain goals. We wouldn't suggest that people shouldn't use software (which, in turn, requires employing programmers) because "in the end, you're only helping programmers", would we?

I'm no fan of the legal profession: the only sticker I have on my laptop reads "Keep your lawyers off my computer". However, I work with lawyers a lot because they are experts on the law, and I (or my organization) can hire them to utilize the law to promote good in the world.

I find proprietary software abhorrent and those who write in my mind are doing something harmful. I find Free Software wonderful and those who write it in my mind are doing something wonderful. Similarly, some lawyers do good in the world and some do bad, just like programmers.

Re: VMWare Taken to Court Over GPL Violation

#278
post #197

Earlier quoted context omitted.

This is not old code. This is the kernel of ESXi 5.5 (Their current product) and its highly likely that ESXi 6.0 has the same problem. This is not old code, it is the heart of their product offerings.

It's not the heart of their product offerings. The heart is vCenter, the kernel is only a small piece. Citrix has no problem with making Xen free software.

I disagree. When you think of all the functions the vmware hypervisor has a range of features where it is quite far ahead of the competition including Fault Tolerance. vSphere is the management interface, its telling the vmkernel to do things, but the vmkernels are able to do a lot of work without the vsphere service being available (HA, etc).

VMware basically invented the modern x86 virtualisation environment, and there is still a lot of value in saying that they do it best as they have the most experience. Make that a commodity and I don't think you have the industry leader anymore.

Re: VMWare Taken to Court Over GPL Violation

#279

Earlier quoted context omitted.

As far as I know, without a license, you do not even have the right to make a copy (i.e. download) or use it.

Except they get one from section 6. You are reading who is giving who a license wrong. Redhat, or whoever they download from, is the "you" there. Not the person who license was terminated. So let's fill in the blanks: 6. Each time Redhat redistribute the Program (or any work based on the Program), the company who violated the license automatically receives a license from the original licensor to copy, distribute or m…

It's odd you keep saying "all open source lawyers" agree with you, because I can't figure out who you could possibly mean. Like, which specific human being do you believe agrees with you? I've studied copyleft almost daily for two decades, and I'm aware of the position of nearly anyone who has ever called themselves an "open source lawyer" in the world, so one would think I'd know who you are talking about since I "know them all" and I can't figure out who I could ask that would give me the same argument as you give.

The only lawyers I find who agree with your position (and, BTW, they agree with it for completely different reasons than you state, and I suspect they wouldn't agree with your reading of v2 Section 6) are a few lawyers in Germany.

I thus find myself in the odd situation of having to defend your trolling a bit, because Till Jaeger, Christoph's lawyer in the VMware case, has indeed stated publicly that he believes you can regain a license under GPLv2 by coming into compliance and redownloading in Germany. However, this is likely specific to Germany because no other legal expert I've ever met who has studied this issue has argued it works anywhere else in the world.

This point is therefore salient insofar as this thread is discussing a copyright case in Germany. But, as I wrote in the copyleft.org footnote I referred to earlier, the issue is just an esoteric legal detail except in the case of proprietary relicensing business models. Community-oriented GPL Enforcement Organizations always restore rights anyway once the violator achieves compliance, so the final impact of both interpretations ends up the same in most enforcement actions, unless of course your goal is to abhorrently use strict termination to extort gobs of money, in which case, this detail matters a lot.

Re: VMWare Taken to Court Over GPL Violation

#280
post #142

Earlier quoted context omitted.

I don't disagree that only people with an ownership right in the copyright have standing, but I note that this has been worked around by a variety of means. The poster child being people like Prenda Law who used dubious techniques to get just enough copyright ownership on something (in their case porn) to sue. Also, as many have noted and some have experienced, at least in the US it is pretty easy to get sued whether…

Except, of course, Prenda Law didn't get around copyright law, but their case is exceptional and I don't think it, or what you've correctly pointed out about how in the US it is easy to get sued, demonstrates much beyond the advantages of loser pays law systems (as I understand it, all of the world but the US). A better one, that I'm a lot more familiar with, is Stephens Media, their property the Las Vegas Review-Jou…

Who kept propping up SCO to draw out that legal battle for so long?
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