VMware wants amicable end to 'meritless' Linux-lifting lawsuit

VMware thinks it will be possible to find an amicable resolution to the lawsuit alleging it has pinched parts of the Linux kernel. The lawsuit was brought two weeks ago by kernel developer Christoph Hellwig, who set the ball rolling in his native Germany. Hellwig's complaint alleges VMware has combined code issued under GPLv2 …

[Spaceman Spiff]

A nice donation?

A couple of million dollars to The Linux Foundation may help, plus a gazillion mia culpas, and ongoing support for the organization at a few $100,000 per year for the next 10 years... This should cause them serious pain, financially, and frankly they deserve it!

[Simon Sharwood, Reg APAC Editor]

Re: A nice donation?

VMware can find that kinda cash behind the sofa. Add several zeroes to get to pain. But a fine idea!

[alain williams]

Re: A nice donation?

There is a relief for breach of GPL that is written into the GPL: release the offending code. VMware could become GPL compliant by releasing its code under the GPL.

Quite simple really.

[thames]

Re: A nice donation?

The Linux Foundation doesn't own the copyrights. The copyrights are retained by the authors, so you would have to track down all the authors affected and get all of them all to agree. That won't happen.

That situation is deliberate, as it makes it virtually impossible for one entity to take over the Linux kernel project and take it proprietary. Anybody who is involved in developing it knows that it will continue under the same or equivalent management for the foreseeable future and there's no danger of someone like Oracle buying Linux (like they bought MySQL via SUN) and changing the rules of the game.

What can happen here is Christoph Hellwig, whose copyrights are the basis of the suite, may make a deal which satisfies his concerns. That however doesn't cover any of the other copyright holders who are free to pursue their own cases.

What may happen though is that VMWare will make some sort of deal with the Software Freedom Conservancy by agreeing to stop violating the copyrights by a set date, pay a sum to the SFC to cover their costs, plus pay a sum to a suitable free software group designated by Hellwig (possibly The Linux Foundation). The money will cover past violations, and the promise to stop distributing will prevent future violations. If the kernel development leaders (Torvalds, etc.) are happy with this, they may then use peer pressure to discourage anyone else from going after VMWare.

What won't happen is granting VMWare a license to continue distributing copyrighted kernel code as part of a proprietary product. There are simply too many copyright holders who won't agree to this. Why for example would Red Hat, a major Linux kernel developer who also happens to own the competing KVM hypervisor, agree to this?

This is what VMWare is really concerned about. They've started a project to develop their own drivers, but it will be very difficult for them to have the wide range of hardware support that Linux has. The bulk of the Linux kernel is actually just drivers. VMWare could copy drivers from one of the BDS kernels, but that will give them very limited hardware support. This is why they copied from Linux in the first place.

The other alternative would be for VMWare to open source their hypervisor kernel under a GPL license. That would cover them completely for future distribution, provided there aren't any other third party copyrights in there (other than Linux). They wouldn't stand to lose much by doing that, since there are loads of hypervisors out there already (e.g KVM and Xen, both open source), and VMWare's big value these days is in the management software, not the hypervisor kernel. Hypervisor kernels are a commodity now, and containers (e.g. Docker) are going to eat into their market share anyway. VMWare needs to move up the stack, which they are already doing anyway. Making their hypervisor open source would cement their position as the industry standard. Lots of companies already pursue an "open core" business strategy by choice - "give away the razor, sell the blades".

[Anonymous Coward]

And the viral GPL strikes again.

[P. Lee]

> And the viral GPL strikes again.

And quite right too.

The point of the GPL is mutual support and shared development costs in tackling common problems.

Nicking the code to make cash for yourself without helping others ain't what its for.

[Anonymous Coward]

Quite right too

I have written some code for the kernel in the past, I find it difficult to believe that someone has managed to successfully provide a full and stable ABI by emulating. The kernel itself fails to do it release-to-release so having a 3rd party achieve what and where the kernel fails is difficult to believe. To say the least.

[thames]

Anonymous Coward says: "And the viral GPL strikes again."

Every software license is "viral" if you make a derivative work. That's inherent in copyright law. A license is what gives you permission to make copies or derivatives. Without one you are not allowed to do so under copyright law. You have to follow the re-distribution terms of the license if you wish to re-distribute, assuming the license allows derivatives or re-distribution at all.

That applies just as much to BSD licenses by the way; you're not for example allowed to strip out the original copyright notices before copy-pasting or re-distributing (like some people seem to think you can). If you copy-paste BSD code into your proprietary product, the BSD license still applies to that code.

If you link an Oracle Java library or Microsoft library to your program, the corresponding Java or Microsoft licenses are still attached to the combined work, "virally" in your terms.

If you copy someone else's copyrighted work (and copyright applies automatically), then you have to read and understand the license terms if you want to avoid trouble.

Oh, and if you want to respond with "well I prefer public domain", that is a legal quagmire with inconsistent and questionable status around the world. I listened to a podcast a couple of years ago where the creator of SQLite (a massively popular embedded database) was interviewed. The license for it is "public domain" for historical reasons, but he said that if he were to do things over again he would use one of the major recognized licenses (he didn't say which one) because of the questionable status of "public domain" in many parts of the world. It comes down to that in many countries simply declaring something to be "public domain" doesn't necessarily make it such unless the copyright period has expired. Since the default state of copyright law is "you're not allowed to copy", then if you want something to be copied you really need a license that explicitly permits that.

[petur]

The amicable end has already been tried, VMware

There have been talks with VMware since 2012, and the answer they consistently got was 'get lost'.

They probably didn't think it would come to an actual lawsuit.

[Joe User]

Re: The amicable end has already been tried, VMware

Later at the pub, VMware's talking head was heard to mutter "Licences? We don't need no stinkin' licences!"

[Anonymous Coward]

What code?

Not at all clear from TFA which code is alleged to have been appropriated.

[W. Anderson]

VMWare will probabl lose their false defence

What is so sad and sickening about one aspect of this VMWare lawsuit is that several Microsoft worshipping idiots have contacted me refering to the inevitability of GPL and FOSS goin down the tube - so to speak - which would be a signiicant benefit to Microsoft in their tiny little dysfunctional minds.

Why has FOSS technolog in business cretaed such antagonistic and draconian positions and behavior from many people? I am fully aware of the heights to which Microsoft itself went in early 2000s to denigrate and disparage Linux and FOSS, een resorting to outrageous lies and false representations in their rhetoric in print, TV and on Internet.

I just did not expect millions of Microsoft worshippers to take such balone to heart still in 2015.

[@ZefflinSystems]

A couple more things to remember

I think everyone is forgetting a key point on this. If VMWare admits they violated GPL and settles with Christoph and any other potential developers, that won't stop the class action suit from their install base. They will get sued by every customer who has paid them license and maintenance for software that is supposed to be opensource. That would bury them as a company. That is why they won't, can't admit fault. It is also why they tried desperately to settle under NDA (they required christoph to sign an NDA just to look at the settlement offer).

Making ESXi open source seems like an option. The problem with that is that VMWare still gets a lot of it's license/maintenance revenue from vSphere. In fact, they are not very competitive with the management VCloud suite. They report a lot of sales, but those are largely carve outs from ELA deals (aka shelfware). vSphere is still their bread and butter and will be for years to come (at least in maintenance, as new license tapers off), as companies don't want to rip out software that is working and they want to get their return on investment.

[thames]

Re: A couple more things to remember

The users won't have grounds to sue unless VMWare is unable to deliver on things like contracted updates. The GPL license terms are an issue between VMWare and the copyright holders. The actual problem that may arise is that VMWare may be ordered by the court to cease distributing infringing product, which means they can't ship to customers.

As for what open sourcing the hypervisor would mean to their revenues, they would still charge for it. They would just call paying them a sum of money "support" rather than "license". That's how Red Hat, Suse, Canonical, etc. make a living after all. Few business customers would use it without a support contract and VMWare would be place where people would look to for support. Their management software would still be proprietary, so there would be no change to that revenue.

To be honest, I don't think it would be very likely that making their hypervisor kernel open source would hurt their business at all.