GPL Trial: OLG Offers Hellwig and VMware Agreement

The question of whether VMware, with its use of Linux kernel drivers in the ESXi virtualization product, infringes on the core developer Christoph Hellwig's copyright and ultimately on GPLv2, hinders the parties and the courts . At an appeal hearing before the Hanseatic Higher Regional Court of Hamburg on Wednesday, November 28, the theoretical possibility of an agreement between the two parties has now appeared. A legal clarification of the important issues relating to the interpretation of the GPL in this case would probably not exist without this agreement.

Hellwig specifically accuses VMware of combining its Linux code with its proprietary ESXi component, Vmkernel, without providing the appropriate source code, as required by the GPL. Vmkkernel in turn communicates via the Vmk API, with a kernel module called Vmklinux. The latter is available from VMware under GPL.

Schematic representation of the structure of Esxi from Hellwig's point of view
(Image: Software Freedom Conservancy – CC-BY-SA 4.0)

For Hellwig and his followers, however, Vmkernel and Vmklinux should be considered as a single entity and the intermediate API as an arbitrary separation. Therefore, Vmkernel should also be released under GPL. As early as 2007, Hellwig had publicly accused VMware of GPL violations. According to his own data, since 2012, the Software Freedom Conservancy (SFC) as Hellwig supporters on a user-friendly solution with VMware, but could not be achieved. In 2014, followed by a warning and shortly after the filing of a complaint against VMware. The dispute could now be resolved somewhat unexpectedly but also amicably for the viewer.

Proposed agreement

In civil proceedings, out-of-court settlement is quite common and is still sought or at least proposed by the courts. This was also done at the trial by judges in the Superior Regional Court, and originally both parties were in principle open with regard to a possible settlement or settlement. ; amicably. Hellwig and VMware have confirmed it again on Golem.de. However, the fact that this agreement now seems possible is not solely due to the length of the proceedings and previous attempts at cooperation.

An agreement also seems possible because VMware has now changed its programming model for ESXi. Already more than a year ago, the company had announced that it would abandon its previous version of the software with the Vmklinux API and the underlying Linux kernel drivers. In the future, the software should only use native drivers, for example, provided directly by the manufacturers on the hardware from which the VMware software is running.

In announcing this change, VMware is focusing primarily on the technical benefits that the company could derive from this milestone. Of course, this also implies that any subsequent claims from Linux kernel developers could be excluded in the sense of the current trial. In the end, an agreement would also be useful, as the version originally hired by Hellwig version 5.5 of ESXi is no longer distributed and supported by VMware.

Hellwig initially only had the right to obtain an omission from the distribution in the event of infringement of its copyright by third parties, that is to say, to prevent dissemination of the code allegedly used illegally. With ESXi 5.5, however, that means it would hurt, since VMware still does not sell the code. As for the new versions of ESXi, which may also infringe on Hellwig's copyright, an omission could be quite desirable.

The easiest way for VMware to respond to potential Hellwigs requests would be to give up the Vmklinux API in current versions and trust native drivers. Of course, VMware could also publish the controversial code completely under GPLv2, but that does not seem to be the case after all these years. In addition, the company could also accept an agreement for other reasons.