Hellwig claimed the outfit had violated version 2 of the GNU General Public Licence and says he will appeal against the verdict.
“I’m disappointed that the court didn’t even consider the actual case of reusing the Linux code written by me, and I hope the Court of Appeal will investigate this central aspect of the lawsuit,” he said in a statement.
The case claimed that VMware had been using Hellwig’s code from 2007 and not releasing source code as required. The Linux kernel, which is released under the GNU GPL version 2, stipulates that anyone who distributes it has to provide source code for the same.
However the court said that Hellwig had failed to prove which specific lines of code VMware had used, from among those over which he claimed ownership. The case revolved around the claim that the company had used a module which was released under GPLv2 with its own proprietary kernel, known as vmkernel. The central question was whether this made the module a derivative work.
Hellwig had the financial backing of the Software Freedom Conservancy, which said it had discovered in 2011 that VMware had failed to provide or offer any source code for the version of BusyBox included in VMware’s ESXi products, an enterprise-class, type-1 hypervisor.
BusyBox combines several stripped down Unix tools in a single executable.
Both the Conservancy and Hellwig claimed that VMware had combined copyrighted Linux code, licensed under the GPLv2, with their own proprietary code called “vmkernel” and distributed the entire combined work without providing or offering complete, corresponding source code.
The court was a little odd about all this. It It did not allow expert testimony while making its decision and more or less decided on the Judge’s own expert knowledge of software.
In December last year, the SFC was forced to issue an appeal for funds, with the organisation saying a drop in donations had become noticeable after VMware was sued. This year the Linux Foundation came under scrutiny when it changed its rules to make it impossible for community representatives to be elected to its board because of the VMware case.