Controversial Code

VMware's Argument

VMware has also talked about the upcoming case and says it believes the lawsuit to be unfounded. In response to a request for information, the company said it feels very close to the open source community, takes part in the community's work, and is committed to it. The company is therefore convinced that it will prevail in the court proceedings.

In the first reaction [6] after the lawsuit was filed, the company expressed disappointment with the SFC and said it regretted the situation had come to a lawsuit. At question is whether the inclusion of the Linux code makes ESX Server a "derivative work," which would require GPL licensing, or whether the open source components form a separate entity that merely interacts with the proprietary kernel, VMware argues that the VMware kernel does not violate the GPL and that the ESXi kernel contains an API for device drivers and loadable modules [6].

Moreover, third parties can write drivers and modules that can integrate with the kernel. If a Linux driver is involved, the vmklinux kernel module is offered; it is loaded in connection with the third-party drivers and cooperates with the VMware kernel via the VMK API. Vmklinux is offered under the GPL and the source code is available.

Options

The lawsuit has another dimension. According to the SFC, if the subject of the GPL lawsuit is a combined work comprising GPL-licensed and proprietary code, VMware would then have to publish the combined work arising from the link. The GPLv2 [7], under which the Linux kernel is licensed, requires the publication of works from combined or derived sources.

Hellwig is hoping for successful proceedings and that other companies will avoid similar cases in the future. He does not believe that a defeat for VMware would mean further complications for the company, other than publishing the code. Hellwig says that a defeat for him would not be good for many companies in the Linux environment because companies such as VMware would get the message they can use the community's contributions without having to give anything back to the developer community.