This is apparently after several years of negotiation with VMWare. The allegation is that VMWare used some open source Linux code in ESXi. If this is true, VMWare illegally charged license and maintenance (excluding support) for what should have been an open source product. Christoph and SFC have filed in German court, where there is precedence for injunctions for software IP infringement that have world-wide implications. VMWare says publicly that there is no merit to the case.
After reading some of the details, I think the decision could go either way. It is an open question.
What does this mean to you? It depends on the outcome, of which there are several possibilities. In my opinion, VMWare has the following options:
- Develop a new ESX that does not use the infringing code – it’s not exactly clear on the effort required, but could be significant
- Settle with Christoph and SFC
- Go to court
- Make ESXi open source
The GNUv2 open source license agreement under which Linux is distributed says clearly that if you use the code and add your own, you are required to make the result open source. There are ways around this rule, mainly by architecting the resulting product to have a loosely coupled integration rather than embedded code (a “shim layer”). VMWare chose not to take that route, however. According to SFC, they have embedded the open source code into their compiled version of ESXi – that’s a direct violation of GNUv2.
Option 3 is go to court. This could be an option but the stakes are very, very high. If VMWare wins, this all goes away (assuming no appeal, and assuming no one else takes it up in another court in another country), and nobody’s life changes. On the other side, the court could grant injunctive relief to the plaintiffs, meaning VMWare would be ordered to stop selling the ESXi immediately, in addition to having to carry out any other associated court order. There is precedent in German courts for injunctive relief for software infringement that has world-wide implications. If that happens, VMWare will likely be sued in other countries, including the United States. They will also be vulnerable to a class action law suit by all their ESX/vSphere customers who could go after a refund of all the license and maintenance they paid (support charges are the only valid charges for open source), plus any damages and/or interest. This could be significant.
The 4th option is to make ESX open source. This would settle the suit, but would still leave VMWare open to customer liabilities for all the license and maintenance they paid before it was made open source. Again, that’s a big pile of money. This may be a viable option. VMWare acknowledges the decline of vSphere sales and the threat of OpenStack to vSphere business in its most recent 10-k filing. It may be pre-empting the inevitable.
It’s difficult to predict the outcome of the law suit at this point. This could go on for several years. My guidance to anyone would be to watch this space and IF the time comes, make contingency plans for minimizing dependence on vSphere/ESXi. OpenStack is gaining traction in both the SMB and Enterprise markets as it matures, governance gets tighter and the ecosystem continues to evolve. Eventually the market will realize that you can do with OpenStack (and then some) what you can do with vSphere, and that since OpenStack is open source, software is free and support will run you around $2k per year per physical server.
If you have any questions or would like to discuss anything further, please feel free to contact me directly. I sincerely hope you made it this far in the newsletter and that this was valuable information.