A GPL-enforcement suit against VMware

Neat, thanks for sharing.

As the world leader, the USA are at the cutting-edge of so many things. But when they're not, they seem to be fairly bad at shopping around and adopting foreign solutions. Not enough neighbors/too much water around? I heard the Romans were more flexible back in the day...

I forgot to add: there also are no fees and cuts involved. At least my bank never took one.

So, when people should be choosing "shared costs" (or whatever the terminology actually is), they start to worry about the recipient incurring costs, and particularly when the recipient is some business whose customer relations people are either ignorant or simply fools (who probably also give the potential customer a lecture about how they don't want to be paying any transfer costs, and so the customer had better sort it out themselves), they become cautious and choose the traditionally acceptable "sender pays all costs", which excludes it from SEPA rules and, because banks are banks, makes it special and expensive.

Oddly enough, my bank actually makes the low-cost transfer the default option and calls it something that sounds as if it's the thing people want. Maybe, given the partial state ownership, some politicians got stung once or twice and brought their rage to bear on the chief executive, however.

In other words, given the complexity and non stability of the internal linux API, the shim is a derived work for sure.

From the shim, you can probably tell if the function called by the shim and belonging to the core kernel are generic core kernel function, or have an API so similar to the Linux one that it makes it a derived work.

Here, however, vmware used neither the syscall interface nor the module interface (which is usable by closed-source modules, if you buy the legal fiction that since some symbols are exported GPL-ONLY, the rest must therefore be exempt from that restriction); they simply created their own. Which makes their code a derived work.

I assume that they invented this API from scratch. This would make any code using it a derived work, too. If they didn't (i.e. the API existed in some form before they forced the Linux kernel into its mold, or vice versa), this trial will might become more interesting than we'd like.

Some symbol are GPL_ONLY exportable. I don't know how much legal strength ithas. But to me this makes binary module as close to derived work as you can go without infringing. And only a small subset of the API is used

Binary core is IMO a much more big step towards derived work, because you have to mimic a lot more of the API.

Hopefully, both sides will expose their ideas with much more clarity than I do :)

While it may be possible to pull this off in a clean room implementation, it's likely much easier to just rip out those parts of the kernel and use as they are. This process will require VMware to tell us about it, and that's welcome.

Oracle won an appeal. We're waiting for the DoJ and the Supreme Court[1] at this point.

[1]http://arstechnica.com/tech-policy/2015/01/supreme-court-...

If it existed beforehand, all bets are off.

This issue is far from clear-cut, but that goes for both sides of the argument.

Disclaimer: I am not a lawyer. (Didn't stop me before …)

That's still pending and working it's way up the court system.

The trial judge (who does know how to program), said it's not derivitive to use the API

The appeals court reversed this, I know that Google appealed the appeals court ruling, but I lost track of it and am waiting for it to work it's way up to the Supreme Court to see what they have to say.

Given how they reacted to the arguments about how the strict copyright interpretation that the textbook publishers were pushing for would cause silly and extreme levels of control, I expect that an argument along the same lines about what's an API and how that could be used to block all competition and hurt consumers would carry similar weight.

Their worth seems to be directly proportional to how fat your wallet is.

The only reason the court wouldn't go for specific performance was if either the plaintiff requested they don't or the defendant made a reasonable case that specific performance would be highly prejudicial or impact 3rd parties. Any such claim would need extraordinary circumstances because they agreed to the contract initially.

Based on past enforcement actions they will ask for damages for past non-compliance and specific performance going forward. Unless Vmware can show that specific performance would require they release 3rd party code they don't control the court will likely grant the plaintiff's request and force Vmware to comply or cease using the code entirely and immediately. Again going by past enforcement actions Vmware's lawyers will convince the company about 1/3rd of the way into the trial that their case is hopeless and that the safest and cheapest alternative is to reach a settlement. At least those are my observations.

I hope they succeed, I've always wondered how Vmware could use all that GPL code in a proprietary product.

Yes, you're not required to accept the license to run the software. Your acceptance of the terms is still required for anything else that is covered. GPL2 also says, in the same paragraph that you quote: "Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

Acceptance, terms and conditions, etc etc.

So why again can't the GPL be a contract? The fact that GPL can be a contract doesn't change the fact that on procedural grounds, a copyright holder would sue on the basis of copyright infringement in the US rather than breach of contract (and probably in other jurisdictions too, that's how the right holder would frame it, though the procedure might not be that much different from breach of contract in other jurisdictions as the US federal court system is a specific one).

Especially interesting to note is the much lower importance of precedence in civil law systems. In other words, another judge could decide to rule differently on a later, similar case. Even more so if he or she isn't German: while most of Europe seems to have civil law systems, the laws themselves can be completely different from one country to another. The European Union is working on that... at a snail, legal pace.

Things we will become *very* interesting for sure and some precedence will be set - however this suit shouldn't produce a "landmark decision" to the same extend it would in a common law system.

By the way: because of the massive US influence on Western culture, many Europeans have misconceptions about their own justice and even police systems. In plainer words, as a European the more entertaining US drama you watch and the less boring and depressing local newspapers you read, the more confused you are about your own systems (I plead guilty!). The most ironic is when even local fictions trying to compete with the US ones for TV market share stage supposedly local judges and policemen "accidentally" following some US-based rules. Think of the last time you had a laugh seeing a computer screen in a movie and you can probably imagine what European lawyers can sometimes feel when they watch TV.