Welte: Report from the VMware GPL court hearing

On his blog, Harald Welte has a report on a hearing in Germany regarding VMware's alleged GPL violations. Welte is a former kernel developer as well as the founder of gpl-violations.org, so he has quite an interest in the case, which was brought by Christoph Hellwig and is being funded by the Software Freedom Conservancy. To Welte's eye, it seems that there are two questions at issue: whether vmklinux and vmkernel are considered to be one or separate works (in a copyright sense) and whether Hellwig has the standing to sue: "This situation is used by the VMware defense in claiming that overall, they could only find very few functions that could be attributed to Christoph, and that this may altogether be only 1% of the Linux code they use in VMware ESXi.The court recognized this as difficult, as in German copyright law there is the concept of fading. If the original work by one author has been edited to an extent that it is barely recognizable, his original work has faded and so have his rights. The court did not state whether it believed that this has happened. To the contrary, the indicated that it may very well be that only very few lines of code can actually make a significant impact on the work as a whole. However, it is problematic for them to decide, as they don't understand source code and software development.So if (after further briefs from both sides and deliberation of the court) this is still an open question, it might very well be the case that the court would request a [technical] expert report to clarify this to the court."