Christoph Hellwig's case against VMware dismissed
Nonetheless, these questions (on which the legal interest of the parties and their counsel presumably focus) can and must remain unanswered. This is because the very first requirement for conducting an examination, namely that code possibly protected for the Plaintiff as a holder of adapter’s copyright has been used in the Defendant’s product, cannot be established." The ruling will be appealed.
Posted Aug 9, 2016 15:06 UTC (Tue)
by fratti (guest, #105722)
[Link] (13 responses)
I... what. I guess I should start writing all my code in my own blood on parchment paper, under the watchful gaze of a notary.
Posted Aug 9, 2016 17:06 UTC (Tue)
by azumanga (subscriber, #90158)
[Link] (4 responses)
If some git repositories contained the copied source, he should have printed out explicit pages and handed them in.
It isn't the court's job to go and do research, you bring the evidence to them.
Posted Aug 9, 2016 17:24 UTC (Tue)
by vegard (subscriber, #52330)
[Link]
1) his references were too broad (“A broad reference such as this to the possibility of investigating in the Internet the facts that have been submitted does not constitute an admissible pleading in court procedure.”);
2) his blame listings show contributor information, but do not establish which of these lines were used by VMware (“Whatever the case, no comparison is made in these lists with the “vmklinux” code from the Plaintiff’s program.”); and
3) the comparison between the kernel code and vmklinux doesn't contain any authorship information (“there is no indication as to which parts of the code marked black and green in the html-files are meant to originate from the Plaintiff. Thus the reader would have to go about finding this out for himself, by comparing the black and green parts of the html-files with the PDFs containing the “blame” files. This at any rate is not a procedurally verifiable pleading”).
Posted Aug 9, 2016 18:11 UTC (Tue)
by bkuhn (subscriber, #58642)
[Link]
Posted Aug 9, 2016 18:24 UTC (Tue)
by ykram (guest, #89515)
[Link] (1 responses)
Posted Aug 10, 2016 4:57 UTC (Wed)
by Wol (subscriber, #4433)
[Link]
Dunno about Germany, but in the UK, first of all it is the JUDGE that appoints expert witnesses (I remember a case a while back, where the Judge said "we don't need an expert witness, any fule can understand statistics" ...)
And secondly, in the UK system, both prosecution and defence normally have to agree as to who the expert witnesses are. If there's a disagreement, they can each provide a list of their preferred witnesses, and then the Judge chooses whoever he wants off the lists.
Going by another comment, it sounds like the UK and German systems are fairly similar in that regard.
Cheers,
Posted Aug 9, 2016 17:36 UTC (Tue)
by nybble41 (subscriber, #55106)
[Link] (7 responses)
I think the court was being rather reasonable here, all things considered, and that the appeal will probably fail. It might have been possible to argue this case successfully, or at least *more* successfully, but Christoph apparently just threw together a bunch of archives and the output of "diff" and "git blame" and expected the court to take him at his word that they proved that VMware copied his code. In other words, he expected the court to do his job for him.
It's not that the git repository was useless as evidence or wouldn't contain all the information necessary to establish Christoph as the author. Christoph just failed to use the information effectively. What his case lacked (besides competent legal representation, apparently) was expert testimony regarding the meaning of the evidence.
Even if he had put together a better case, however, I still think VMware is in the right on this one. I don't necessarily agree with every part of their arguments, but in the end I don't think that they infringed on anyone's copyright, either. I also think that even if they did we would still benefit from granting some leeway in trivial cases like this, where the code supposedly copied makes up an extremely minor portion of the overall product. If decided the other way this could end up causing widespread problems similar to those surrounding Oracle's claims to copyrights in APIs.
Posted Aug 9, 2016 18:03 UTC (Tue)
by pizza (subscriber, #46)
[Link] (6 responses)
VMWare might not have infringed on any one individual's copyright, but when you lump all of those individuals together the infringement becomes much more substantial.
Being able to avoid this trap is one of the reasons why the FSF wants contributors to assign copyrights.
Posted Aug 9, 2016 18:23 UTC (Tue)
by nybble41 (subscriber, #55106)
[Link] (5 responses)
True, but I think standing is difficult to show anyway for a GPL'd work because even if there is infringement the license doesn't involve any material compensation, so Christoph didn't lose anything of material value when it was (allegedly) infringed. How exactly is Christoph be worse off because VMware distributed GPL'd code to its customers in binary form? The ones who might have benefited by receiving the source code would have been the customers, not Christoph—and even they can obtain almost exactly the same code from the public Linux repositories.
If a large number of contributors are involved and wish to pursue the matter, there is always the possibility of a class-action suit on behalf of all the contributors.
Posted Aug 9, 2016 18:46 UTC (Tue)
by khim (subscriber, #9252)
[Link] (2 responses)
Perhaps not Germany. But in US it certainly does. The term “financial gain” is defined as receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works—fits the GPL (v2, not v3) to a t. It's designed in a way to provide that “expectation of receipt” of “other copyrighted works”, after all.
Posted Aug 9, 2016 19:12 UTC (Tue)
by pizza (subscriber, #46)
[Link] (1 responses)
Even if there's no direct "financial damage", the only thing giving VMWare permission to redistribute stuff derived from GPL-licensed software is the GPL itself. Take that away, and every single copy of VMWare distributed is a separate infringement, which would equate to oh, something like a trillion dollars of statutory damages if you use RIAA/MPAA math.
Posted Aug 9, 2016 22:21 UTC (Tue)
by derobert (subscriber, #89569)
[Link]
Posted Aug 9, 2016 19:40 UTC (Tue)
by rahvin (guest, #16953)
[Link] (1 responses)
I would argue that without that Linux code VMware has a product that's significantly diminished in value, indicating quite easily the value of the code.
Posted Aug 10, 2016 18:37 UTC (Wed)
by nybble41 (subscriber, #55106)
[Link]
Not much, probably. According to VMware it's only about 150 lines, not counting the comments. How long do you really think it would take VMware to come up with something equivalent to replace the 150 lines of executable code that Christoph is claiming copyright over?
Posted Aug 9, 2016 15:21 UTC (Tue)
by bkuhn (subscriber, #58642)
[Link] (2 responses)
As most are probably aware from
past LWN stories, Software Freedom Conservancy is funding Christoph's lawsuit. Conservancy issued our
own statement today about this matter, and in particular published a
detailed code similarity analysis, which includes details of a technical
method for confirming Christoph's copyrighted materials appear in VMware's
product. I know that no one likes hearing a fundraising pitch, but the best thing that people can do now to help is become a Conservancy Supporter. Litigation is expensive.
Posted Aug 9, 2016 20:27 UTC (Tue)
by dfsmith (guest, #20302)
[Link] (1 responses)
Posted Aug 9, 2016 22:51 UTC (Tue)
by bkuhn (subscriber, #58642)
[Link]
Furthermore, as is discussed at length in the ruling, VMware released some but not all of the source code that GPL required them to release. That's why this was the merits of the case (on which the Court did not opine) were about derivative/combined works.
Posted Aug 9, 2016 15:59 UTC (Tue)
by vegard (subscriber, #52330)
[Link] (3 responses)
VMware is arguing that of the 798 LOC that Christoph Hellwig claims to have written, only 149 actually reached the end user (because some of them are comments or not compiled in):
“Thus this ultimately leaves just 149 lines that may possibly have originated from the Plaintiff and reached the end user (written pleading 05.02.2016 p. 6 f. = p. 46 f. of the annex, also for the following). Just the three “vmklinux” files to which the Plaintiff refers already contain 6895 lines of code, to which the Plaintiff has therefore contributed less than 2.2% in terms of volume.”
But unless their count of 6895 LOC was also stripped of comments and non-compiled code, the 149 / 6895 = 2.2% figure is artifically low.
Posted Aug 9, 2016 17:52 UTC (Tue)
by tbird20d (subscriber, #1901)
[Link] (2 responses)
Posted Aug 9, 2016 18:00 UTC (Tue)
by bkuhn (subscriber, #58642)
[Link] (1 responses)
Posted Aug 9, 2016 19:50 UTC (Tue)
by tbird20d (subscriber, #1901)
[Link]
I didn't mean to imply that I endorsed Vmware's analysis of the code. However, I think that it's interesting to note that comments and non-compiled code aren't "distributed". This has bearing (at least in my non-lawyer mind) when analyzing GPL violations.
Posted Aug 9, 2016 18:59 UTC (Tue)
by tbird20d (subscriber, #1901)
[Link] (4 responses)
I'm not sure whether "percentage of total work" is a factor that has bearing in other legal jurisdictions (such as the U.S.), but it appears to be a factor at least in Germany.
Does this mean that individual contributors will have difficulty pursuing legal action for large open source projects, due to the natural dilution in contribution that occurs for open source or other crowd-sourced works? This type of issue, if real, would be difficult to address, as it seems unlikely that you'd get a large percentage of contributors to collectively participate in legal action, on a large, widespread project such at the Linux kernel. It is possible that legal frameworks may need to be updated to deal with modern situations with large bodies of contributors.
Posted Aug 9, 2016 19:37 UTC (Tue)
by bkuhn (subscriber, #58642)
[Link] (2 responses)
Posted Aug 9, 2016 23:05 UTC (Tue)
by chirlu (guest, #89906)
[Link]
These discussions are taken into account by the higher courts, too, whose decisions are (mostly) legally binding for their subordinate courts. In the end, the Federal Court of Justice will decide about the legal questions involved, but the lower courts need to determine the facts first.
Posted Aug 11, 2016 6:50 UTC (Thu)
by marcH (subscriber, #57642)
[Link]
Common law systems have this feature indeed. Unfortunately, the US legal system has a small problem: you can hardly get any kind of justice without a fair amount of money. Wait... even with money: http://www.nytimes.com/2015/10/07/business/dealbook/prote...
Posted Aug 9, 2016 19:46 UTC (Tue)
by rahvin (guest, #16953)
[Link]
Posted Aug 9, 2016 19:05 UTC (Tue)
by mgb (guest, #3226)
[Link] (3 responses)
Posted Aug 9, 2016 22:14 UTC (Tue)
by pbonzini (subscriber, #60935)
[Link] (1 responses)
Posted Aug 9, 2016 23:40 UTC (Tue)
by chirlu (guest, #89906)
[Link]
Posted Aug 9, 2016 23:29 UTC (Tue)
by chirlu (guest, #89906)
[Link]
> This is still true even after taking into account the Plaintiff’s subsequently admitted procedural document dated 29.04.2016, in which he (after the deadline had been extended) had a further opportunity to enter a pleading on the reservations in this respect which the court had already expressed at the hearing.
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
azumanga, I've learned over the last 1.25 years that the German system is quite different than evidentary systems that you and I might already be familiar with. As noted in Conservancy's announcement: “In addition, the Court chose not to seek expert testimony”. In the German system, the Court, not the litigants, decides if an expert is utilized. Many people are surprised that one was not used here.
German Court experts are appointed only by the Court
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Wol
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
True, but I think standing is difficult to show anyway for a GPL'd work because even if there is infringement the license doesn't involve any material compensation
Christoph Hellwig's case against VMware dismissed
At least in the US, statutory damages are per work, not per copy. To quote 17 USC §504(c)(1):
Christoph Hellwig's case against VMware dismissed
"Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work." (emphasis added)
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
More details regarding Christoph's VMware case from Conservancy
More details regarding Christoph's VMware case from Conservancy
dfsmith, I think you might be confused. The VMware code for the similarity analysis is public; you can reproduce the entire analysis from scratch if you'd like using the information linked to from the report you read.
More details regarding Christoph's VMware case from Conservancy
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
tbird20d, actually, some (not all, hence the lawsuit) of the code was shipped as source code and binary both. Definitely read the ruling and the materials that Conservancy provided on our website which explains these nuances. This isn't just a mundane no-source-nor-offer violation (although VMware had one of those too initially).
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Implications for future legal action on open source work
tbird20d, it takes some time to get used to for folks like us from the USA, but the German legal system is not a common law system, and is not based on precedent. As such, IIUC, a single lower Court in Germany does not have implications even as precedent within that Court, let alone anywhere else. I must admit that looking closely at the German legal system, I much prefer the USA system now myself, as the precedent system makes it possible to establish norms using the mechanisms which both you and I are familiar, as Conservancy already did by receiving a judgment in one of the BusyBox cases.
No implications for future legal action on open source work
No implications for future legal action on open source work
No implications for future legal action on open source work
Implications for future legal action on open source work
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed
Christoph Hellwig's case against VMware dismissed