Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2016/02/29/VMware.html
[ 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,
Court cases are a prime
that life must be understood backwards. But they forget the other
proposition, that it must be lived forwards.
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.
