[geofft]

> 1) There is no argument that depending on a Linux console OS makes any part of ESX subject to GPL that is not already opene sourced.

Yes there is: the GPLv2 says:

"If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it."

You would have to not consider the ESX product "a whole which is a work based on" the COS.

Naturally, this interpretation would extend to just about everyone who builds virtual appliances, special-purpose bootable CDs, etc. So it would be an unfortunate interpretation. (In particular, you couldn't intermingle GPLv2 and GPLv3 software on a virtual appliance!) But just because it is unfortunate does not mean it is not valid.

[btw, it's worth noting that the COS basically no longer exists.]

[snuxoll]

There is already precedent for the separation of software licenses at process boundaries, if the GPL was viral enough to cause issues with virtual appliances then Linux distributions would be in deep water already since they are a product of the combined software included on the installation media.