VMware's GPL violation case rolls into German court

Proceedings have begun in the German case probing whether VMware's ESXi is in violation of the Gnu Public Licence

The case emerged last March, when ace kernel developer Christoph Hellwig alleged that ESXi hypervisor has pinched parts of the code he wrote for the Linux kernel. That's a big no-no under version 2 of the GPL.

So off to court the matter went, but not without incident. In preliminary filings, VMware argued that Hellwig has no right to bring the case. Hellwig countered that his extensive contributions to the kernel mean he's as good a person as anyone to make a claim.

The case also emerged as a drain on the Software Freedom Conservancy (SFC), which claimed that the matter had seen its funding pulled and invitations to conferences dry up.

The matter made it to Hamburg's District Court last week where, thanks to a blog post by free software advocate Harald Welte, we know that the presiding judge displayed a basic knowledge of the issues, found no jurisdictional issues to derail the case but closely considered whether the fact Hellwig's contributions to the Linux kernel represent a fraction of its whole The judge came away validating Hellwig's right to bring the action and the SFC's role in supporting the lawsuit.

The SFC appears to be relying on Welte's post in its own missive on the hearing. That SFC post noted that “First of all, in great contrast to the cases here in the USA, the Court acknowledged fully the level of public interest and importance of the case.”

The SFC's Bradley M Kuhn looks forward to the case unfurling, writing that “At this point in the VMware case, nothing has been decided; this is just the next step forward in a long process. We enforced here in the USA for almost five years, we've been in litigation in Germany for about one year, and the earliest the Germany case can possibly resolve is this May.”

A May resolution is a very optimistic outcome, as the court gave VMware and Hellwig until April 15th to submit further arguments. May 16th has been set as a day for a decision to be delivered, but only if the court feels it has all the information it needs to do so before that date. With the court saying it has only a basic understanding of the issues at stake, quick resolution without recourse to witnesses and experts appears unlikely.

Welte also recorded the presence of several US-based VMware staffers in the courtroom. Virtzilla's not made fresh public comment on the case your correspondent can find at the time of writing, but certainly appears to be taking the suit very seriously and has previously denied any GPL violations. ®