Linux kernel developer Christoph Hellwig's bid to have VMware's knuckles rapped for breaching the GNU General Public Licence (GPL) has failed, for now, after the Landgericht Hamburg found in Virtzilla's favour.

The Software Freedom Conservancy backed Hellwig when he alleged that some of his contributions to the Linux kernel have found their way into VMware's very proprietary flagship ESXi product, in a component called “vmklinux”. Hellwig and the Conservancy believe that as ESXi includes code licensed under the GPLv2, ESXi should itself be released as open source code under the same licence.

VMware has said it would prefer an amicable end to the case and has moved to have the case dismissed. Hellwig and the Conservancy pressed on and into court in February 2016.

The judgement has now emerged and it's bad news for Hellwig because judges Hartmann, Harders and Frantzen have come down on VMware's side of the argument, albeit for legalistic reasons.

As the judgement says, after being shoved through an online translate-o-tronic device, Hellwig raises issues that make the case admissible. But the three judges say Hellwig didn't establish exactly which lines of code ended up in ESXi. At several points in the judgement, the panel write that Hellwig just hasn't been precise enough in his description of which bits of ESXi represent a breach of Copyright.

The judges' conclusion says the State of Claim “fails in more than one respect to state the cause of action, because it makes clear neither which 'parts' of Linux are supposed to be involved, nor which modifications the Plaintiff made in that respect, and it does not state which parts of code specifically originating from him are supposed to have been used in 'vmklinux'.”

Hellwig has blogged that he'll appeal because “The ruling concerned German evidence law; the Court did not rule on the merits of the case, i.e. the question whether or not VMware has to license the kernel of its product vSphere ESXi 5.5.0 under the terms of the GNU General Public License, version 2.”

The Software Freedom Conservancy has weighed in, too, with a new analysis of where Christoph Hellwig's Linux code pops up in ESXi 5.5.

Perhaps that analysis is what Hellwig needs to get over the evidentiary hump and into discusssion of whether VMware breached copyright. There's no word on when the case might return to court and VMware's official organs are silent on the matter. ®