Software Freedom Conservancy reports that the Hamburg Higher Regional Court affirmed the lower court's decision, which dismissed Christoph Hellwig's case against VMWare in Germany. Hellwig will not pursue the case further in German courts.
Conservancy's staff also spent a significant amount of time and resources at each stage of the proceedings — most recently, analyzing what this ruling could mean for future enforcement actions. The German court made a final decision in this case on procedure and standing, not on substance. While we are disappointed that the courts did not take the opportunity to deliver a clear pro-software-freedom ruling, this ruling does not set precedent and the implications of the decision are limited. This matter certainly would proceed differently with different presentation of plaintiffs or in another jurisdiction.
In addition to VMware committing to removing vmklinux from their kernel, this case also succeeded in sparking significant discussion about the community-wide implications for free software when some companies playing by the rules while others continually break them. Our collective insistence, that licensing terms are not optional, has now spurred other companies to take copyleft compliance more seriously. The increased focus on respecting licenses post-lawsuit and providing source code for derivative works — when coupled with VMware's reluctant but eventual compliance — is a victory, even if we must now look to other jurisdictions and other last-resort legal actions to adjudicate the question of the GPL and derivative works of Linux.