How can you protect a commons of software code from free riders who attempt to take it private for their commercial gain?

The traditional answer has been copyright-based licenses such as the General Public License, a legendary legal hack on copyright law that ensures the perpetual “shareability” of all licensed code. The GPL requires that third parties make any derivative software programs freely available to everyone and that they use the same license, thus ensuring that all future downstream uses of the code will also remain shareable.

But what happens if a company simply ignores the GPL and continues to free ride?  We are about to find out.

After a long period of alleged non-compliance with the GPL, the software firm VMware is being sued by the Software Freedom Conservancy, a nonprofit home and infrastructure for free, libre and open source software projects. Most companies respect the GPL and other open source licenses, which is why this lawsuit is a rare enforcement action.

The Software Freedom Conservancy reports that it attempted to reason with VMWare, a $36 billion company traded on the New York Stock Exchange, before finally realizing that the company had no intention of complying. The last straw came when VMWare demanded that that lawyers sign a nondisclosure agreement just to discuss settlement terms.

The plaintiff is German Christophe Hellwig, a key developer of the Linux kernel in this case,  The lawsuit was filed in a German court last week. The Conservancy describes Hellwig’s experience this way:

Christoph is among the most active developers of Linux. As of Feburary 19, 2015, Christoph has contributed 279,653 lines of code to the Linux kernel, and ranks twentieth among the 1,340 developers involved in the latest 3.19 kernel release. Christoph also ranks fourth among those who have reviewed third-party source code, tirelessly corrected and commented on other developers’ contributions. Christoph licenses his code to the public under the terms of the GPL for practical and ideological reasons.

VMware, a company with net revenue of over $1 billion and over 14,000 employees, ignored Christoph’s choice. They took Christoph’s code from Linux and modified it to work with their own kernel without releasing source code of the resulting complete work. This is precisely the kind of activity Christoph and other kernel developers seek to prevent by choosing the GPL. The GPL was written to prevent this specific scenario!

…..What point is there for companies to make sure that they’re compliant if there are no consequences when the GPL is violated? Many will continue to ignore the rules without enforcement. We know that there are so many companies that willingly comply and embrace GPL as part of their business. Some are temporarily out of compliance and need to be brought up to speed, but willingly comply once they realize there is an issue. Sadly, VMware sits in the rare but infamous class of perpetually non-compliant companies. VMware has been aware of their noncompliance for years but actively refuses to do the right thing. Help us do right by those who take the code in the spirit it was given and comply with copyleft, and stop those don’t.

Here is a FAQ about the lawsuit.  The court ruling promises to be a landmark not just in clarifying the scope and enforceability of the GPL, but in showing that FLOSS users have the will and capacity to defend their software commons.  So, in this spirit, consider a contribution to the legal fund for enforcing the GPL, and consider joining the Free Software Conservancy.

Why care about the GPL? Check out the recent blog post by Mike Linksvayer, former Creative Commons Chief Technology Officer, “Six reasons for GPL lovers, haters, exploiters and others to enjoy and support GPL enforcement.”