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Comment by spullara | Hacker News Reader

Any litigation of the GPL is more than likely more dangerous for the GPL than it is for the companies. A relaxing of the understood requirements of using and distributing GPL code could cause an avalanche of fall out from formerly protected code becoming less protected. If I was this organization I would only risk a lawsuit of something that would have profound positive consequences for open source. VMware's risk is relatively small vs the risk that the GPL's viral component is weakened.

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If the GPL isn't strong enough to hold up in court, it's not a very good license and could use some modification. It's going to need to be challenged some time, or else it will stop being taken seriously. If companies think they can trample on the GPL and get away with it, the GPL is destroyed. If someone challenges a company and the GPL is weakened, it can be made stronger.

This can only have a positive outcome. The alternative is the GPL ceases to exist.

There have been several rulings in germany in favor of the GPL and its enforceability[1][2][3] (pages in german), so these aren't exactly untested waters.

[1] http://www.ifross.org/sites/default/files/130618%20Urteil%20... [2] http://www.it-recht-kanzlei.de/Urteil/2767/LG_Frankfurt_6.Zi... [3] http://www.internetrecht-rostock.de/urheberrecht23-gpl-lg-mu...

There is strong precedent in German courts for enforcing GPL violations. Probably stronger than in any other country's legal system. The Software Freedom Conservancy is probably the organization least likely to screw up the decision to enforce the GPL through the courts.

Except that the German system by large does not use precedence at all. At best prior cases can be an aid in an ongoing court case. At worst, prior cases are ignored completely and only what the law says will be taken into account by the courts.

You don't litigate the GPL in court as such. You litigate a copyright violation. Christoph is going to go to the judge and say the German equivalent of "your honor, VMWare is distributing my copyrighted work without permission. Make it stop please." VMWare then has two choices: either it says "but we have permission, a license to do so" whereupon it needs to obey the terms said license, or it needs to immediately cease distributing Christoph's copyrighted work.

The GPL has been tested in courts all over the world. VMWare is insane to continue violating it after being informed of the problems and to then refuse cooperation.

They'll probably pay up and drop dead once someone mumbles injunction.

VMWare is insane to continue violating it after being informed

Or maybe, they don't agree that they are?

That could be why there's a court case!

My god, it's so simple...

So, i actually don't think that's the case. This seems more a case of "they screwed up, and as a result got asked to open source something they need to, but business-wise think would be a huge monetary loss". So they are going to court because the worst that can happen is pretty much what they were already asked to do - open source vmkernel, etc. The copyright infringement money damages are probably minimal or nothing (Disclaimer: I only know US copyright law). So they have literally nothing to lose

They have a great deal to lose. The consequences of being found to have violated the GPL include having your license to use GPL'ed code revoked.

Again, no, it doesn't in the case of GPLv2 code (which is what we are talking about). See my other comment.

The second they came back in compliance, they could redownload the exact source they copied, from wherever they got it, and they'd have a fresh, brand new license, with no problems.

GPLv3 fixed this "loophole".

In fact, you can see what others have attempted (and failed) to do to try to prevent this "loophole" from functioning.

Look at: www.ximpleware.com

(they were involved in GPL litigation against Versata)

It says, at the bottom "All licenses to any parties in litigation with XimpleWare have been expressly terminated. No new license, and no renewal of any revoked license, is granted to those parties as a result of re-downloading software from this or any other website"

This is there because they know of this exact problem, and didn't want versata to be able to avoid the lawsuit.

Of course, this text does not override the GPL in any way, and since it was given to them under the GPL, they can't now go back and say "those copies you have are retroactively under a different license". So it's pointless text, but hopefully this gives you an idea that what i said is not just "random lawyer kibitzing".

You're making this "loophole" up.

See https://news.ycombinator.com/item?id=9156539

No, i'm not. Shocking: heavy GNU contributor doesn't like this viewpoint :)

full disclosure: I have exactly 0 copyright in GNU software.

Interesting. Is that an argument you've seen confirmed by a lawyer, or are you yourself actually a open-source software licensing lawyer, like 'DannyBee is?

Yes, I am a lawyer.

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