The VMware Hearing and the Long Road Ahead

Monday 29 February 2016 by Bradley M. Kuhn

[ This blog was crossposted on Software Freedom Conservancy's website. ]

On last Thursday, Christoph Hellwig and his legal counsel attended a hearing in Hellwig's VMware case that Conservancy currently funds. Harald Welte, world famous for his GPL enforcement work in the early 2000s, also attended as an observer and wrote an excellent summary. I'd like to highlight a few parts of his summary, in the context of Conservancy's past litigation experience regarding the GPL.

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. Judges who have presided over Conservancy's GPL enforcement cases USA federal court take all matters before them quite seriously. However, in our hearings, the federal judges preferred to ignore entirely the public policy implications regarding copyleft; they focused only on the copyright infringement and claims related to it. Usually, appeals courts in the USA are the first to broadly consider larger policy questions. There are definitely some advantages to the first Court showing interest in the public policy concerns.

However, beyond this initial point, I was struck that Harald's summary sounded so much like the many hearings I attended in the late 2000's and early 2010's regarding Conservancy's BusyBox cases. From his description, it sounds to me like judges around the world aren't all that different: they like to ask leading questions and speculate from the bench. It's their job to dig deep into an issue, separate away irrelevancies, and assure that the stark truth of the matter presents itself before the Court for consideration. In an adversarial process like this one, that means impartially asking both sides plenty of tough questions.

That process can be a rollercoaster for anyone who feels, as we do, that the Court will rule on the specific legal issues around which we have built our community. We should of course not fear the hard questions of judges; it's their job to ask us the hard questions, and it's our job to answer them as best we can. So often, here in the USA, we've listened to Supreme Court arguments (for which the audio is released publicly), and every pundit has speculated incorrectly about how the justices would rule based on their questions. Sometimes, a judge asks a clarification question regarding a matter they already understand to support a specific opinion and help their colleagues on the bench see the same issue. Other times, judges asks a questions for the usual reasons: because the judges themselves are truly confused and unsure. Sometimes, particularly in our past BusyBox cases, I've seen the judge ask the opposing counsel a question to expose some bit of bluster that counsel sought to pass off as settled law. You never know really why a judge asked a specific question until you see the ruling. 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.

Kierkegaard wrote that it is perfectly true, as the philosophers say, that life must be understood backwards. But they forget the other proposition, that it must be lived forwards. Court cases are a prime example of this phenomenon. We know it is gut-wrenching for our Supporters to watch every twist and turn in the case. It has taken so long for us to reach the point where the question of a combined work of software under the GPL is before a Court; now that it is we all want this part to finish quickly. We remain very grateful to all our Supporters who stick with us, and the new ones who will join today. That funding makes it possible for Conservancy to pursue this and other matters to ensure strong copyleft for our future, and handle every other detail that our member projects need. The one certainty is that our best chance of success is working hard for plenty of hours, and we appreciate that all of you continue to donate so that the hard work can continue. We also thank the Linux developers in Germany, like Harald, who are supporting us locally and able to attend in person and report back.

Posted on Monday 29 February 2016 at 17:00 by Bradley M. Kuhn.

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#include <std/disclaimer.h>
use Standard::Disclaimer;
from standard import disclaimer
SELECT full_text FROM standard WHERE type = 'disclaimer';

Both previously and presently, I have been employed by and/or done work for various organizations that also have views on Free, Libre, and Open Source Software. As should be blatantly obvious, this is my website, not theirs, so please do not assume views and opinions here belong to any such organization. Since I do co-own ebb.org with my wife, it may not be so obvious that these aren't her views and opinions, either.

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