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Comment by Tomte | Hacker News Reader

Main takeaway: Hellwig did these things to try and establish authorship:

a) promise that he is author -- court says "such a simple claim is not enough"

b) point towards the git repository where everybody can see his contributions -- court says "you have to prove that you're author, not just give instructions how other people could prove it"

c) say that kernel version x.y.z is "closest" to VMware software -- court says "don't just throw a version string at us, show with concrete examples which code passages have been lifted"

And some more things along these lines.

I'm really confused how Hellwig's lawyer even tried that. Even to a layperson it's obvious that "I won't prove my authorship, but if the court wishes to do itself, it will be easy" won't fly.

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He also gave them blame files as pdfs. But then the court complains about them being unconnected to the VMWare software.

My takeaway is that this needs a magnitude more effort. I guess one has to manually go through the history and filter out all non-copyright changes (such as white space changes) and then come up with a measure of authorship. The court also needs significantly more hand-holding. I don't know if it is normal that they need to be spoon-fed everything.

It's not about spoon-feeding, it's about civil procedure.

Unlike criminal procedure, where the court has an obligation and will discover evidence and other facts pertaining to the alleged crime sua sponte, in civil cases the court MUST NOT discover evidence by itself.

For example, an acquaintance of mine who was a judge at the time, told me about one of the cases he presided on, where the statute of limitations on the claim had long run out. But the defendant's [edit: correction] lawyer hadn't noticed it.

He went so far as to inquire several times when exactly the action had been (including nudges like "that was 2001, we have 2016 now, so it's been about fifteen years"), and even that was very much borderline.

The lawyer didn't realize that he only had to mutter the words "statute of limitations" and the case would have been thrown out seconds later, and so the plaintiff won.

Sorry, do you mean the defendant's lawyer hadn't noticed it?

Indeed!

The civil procedure example you're giving here is unrelated to rules of evidence (which are a proper subset of the rules of civil procedure). Also, note that the German courts aren't common-law based, and don't follow the rules of civil procedure of the nature you're talking about.

Of course, it was just an example to show you Americans that things work differently here.

I don't know how on earth you could misinterpret my comment as having anything to do with common law. I was describing the difference in German procedural law between the court as an active fact-finding organ in criminal cases and a passive organ in civil cases, deciding upon facts offered by the parties (and only those).

I think you're mixing something up.

You're conflating a lot of different issues. Anyway, the example you started with would likely work similarly in the USA. You'd have to provide a lot more detail to actually show the the difference that it seems you're trying to show.

There are strong rules of evidences in common law systems as well, and the Court expects the parties to introduce evidence; I don't know of any Court that goes seeking evidence that wasn't provided.

In the USA, we talk of jury's as "fact fiinders", but their job is to only consider the evidence before them (possibly conflicting, as it comes adversarially from both sides), and find what's true. But no one in this process other than the parties in civil litigation bring evidence forward.

So, the specific distinction you're trying to make isn't really a distinction between the two systems. I agree with you that there are huge differences in various ways.

My guess at what you're trying to point out is that there is no discovery process in Germany and elsewhere, which is certainly true and is relevant to this discussion, and makes the evidentiary systems very different in practice.

Interestingly, Richard Fontana just told me today a piece of history I didn't know: the USA didn't have discovery in civil cases until the early 20th century, apparently.

I find it amazing that the law prohibits a judge from saying, "The statute of limitations period means that this cannot be valid," and throw the case out, but rather requires one of the lawyers to do so.

Yes, it sounds strange.

I've just looked up in a legal commentary, and it isn't as clear-cut as my acquaintance told it to me.

Baumbach/Lauterbach/Hartmann say that the judge may broach the issue if the defense has expressed doubts about the time-line of actions, but that it must not reach the level of advice.

Other commentaries say that the judge must not broach the issue.

And there is even a cool minority opinion in NJW (Schneider), saying that the declining quality of jurists' training may lead to the judge having to protect the client from his own lawyer. ;-)

It makes some sense as judge as arbiter and interpreter of law, no? If a judge were to say "You should argue this" then the expectation that he or she would be predisposed to finding that a valid claim would be pretty apparent.

I can see examples where this would lead to slippery slopes in both the defendant's and plaintiff's favors.

It's always difficult to intuit what a Court needs ahead of time to understand these complex topics, particularly in a legal system without a discovery process (such as Germany). I prepared the following in that effort: https://sfconservancy.org/copyleft-compliance/vmware-code-si...

and I expect to do more similar work in the future, funding permitting. https://sfconservancy.org/supporter/#annual

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