Hellwig, the maintainer of the kernel's SCSI sub-system, said in a statement that his appeal against the decision issued by the Hamburg District Court on 7 August 2016 had been dismissed by the Hamburg Higher Regional Court.
He added that, after conferring with his lawyer, Till Jaeger, and the Software Freedom Conservancy, which bankrolled the litigation, that no further appeal would be lodged.
“The subject of the complaint I filed was the question of whether the distribution of the software Hypervisor vSphere VMware ESXi 5.5.0 software is copyright infringement because VMware has no permission to create a derivative work from Linux under the GNU General Public Licence," said Hellwig.
In his case, Hellwig had claimed that VMware had been using his code right from 2007 and not releasing source code as required. The Linux kernel, which is released under the GNU GPL version 2, stipulates that anyone who distributes it has to provide source code for the same.
When the case was knocked back in August 2016, the court said that Hellwig had failed to prove which specific lines of code VMware had used, from among those over which he claimed ownership.
The case was unusual in that the question of using proprietary code with the Linux kernel did not come under examination. Rather, the VMware case revolved around the allegation that the company had used a module which was released under GPLv2 with its own proprietary kernel, known as vmkernel. The central question was whether this made the module a derivative work.
The Linux kernel itself does contain proprietary blobs, but as long as these do not fit the definition of derivative works, the GPLv2 is not violated, and the code for the blob in question is not covered by the licence.
In his statement, Hellwig claimed that neither the court which rendered the judgment nor the one that had knocked back his appeal had dealt with the substantive matter of his complaint.
The Hamburg Higher Regional Court "dismissed the appeal just like the first instance because of insufficient proof of the right ownership or the copyright protection capability of the components taken over from Linux," he said.
"The requirements imposed by the court were extraordinarily high and make it very difficult for individual Free Software developers to assert their rights alone."
Hellwig added that the courts may have been influenced by the acts of Patrick McHardy who had approached companies on his own, to enforce rights he claimed due to his having contributed code to the kernel. McHardy claimed these companies were using his code in violation of the GPL.
Software Freedom Conservancy executive director Karen Sandler said: “VMware knew what they were doing was wrong, but continued to generate revenue by infringing copyrights in Linux, while only slowly working toward non-infringement.
“As we have always said, we simply want companies to follow the rules and do the right thing when they incorporate GPL'd code into their products.”