ESX 3i still has Linux inside - it uses GPL drivers wrapper in a shim layer to try and bypass the GPL

Ed:As other posts have noted, while ESX 3i runs without Linux, it doesn’t fix the problem of past copyright issues, especially as that older software is still being distributed.

Copyright protects the creative choice of one option out of millions of possible other options. Linus wrote Linux, but he could have written an OS millions of other ways. Shakespeare wrote Romeo and Juliet, out of the millions of possible stories of star-crossed lovers.

If you need hooks from the kernel, that’s clearly a purely functional consideration. That’s the part that’s *not* covered by copyright. The question is whether the work takes creative choices from the kernel, that is, where it could have done things millions of possible ways, it does things the way the kernel did rather than making its own creative choices.

If you’re going to make a Linux network driver, that’s functional. You can take whatever is needed for that function without implicating copyright.

See, for example, Lexmark v. Static Controls. Here Static Controls stole an entire program from Lexmark. But the courts held that copyright was not violated because they took only what was needed for their specific function, making a toner cartridge that was compatible with Lexmark printers.

Similarly, if vmware wants to make a module that works with Linux, they can take as much as they need to work with Linux. Copyright is only implicated when you take more than you need.

http://www.run-virtual.com/?p=88

My question: if the vmkernel is not linux, why do you need to tell it to use the magaraid2.o kernel module which clearly is a linux module?

I have been wondering for years why vmkernel was hardly ever discussed while there was an endless debate over NVidia and ATI drivers. My personal guess is that VMware is more popular than other companies in the Linux community.

The discussion won’t finish with ESX 3.0 or future versions, even if they contain no single GPL’d component. VMware will have to justify what they did in 2.5, anyway.

In future that discussion might finish, since VMware announced a new ESX version, which will come without a service console anymore. That version just contains the vmkernel and would not violate any GPL’s anymore…

Exactly, it called VMWare ESX 3i, shipping now as an embedded product in servers of the likes of Dell, IBM, HP and Fujitsu and which will be included in the upcoming Infrastructure 3.5 product. So I guess the question regarding ESX’s hability to run without the COS has been answered.