Well, having used VMware Workstation 8 and 9, I can was able to download and modify the Linux drivers provided by VMware, necessary to fix some kernel related bugs
I don't think the lawsuit is over vmware tools. VMware provides source code to most of the VMware tools components; often they are installed by building the source code.
The VMware hypervisor includes a special management Virtual Machine run by the vmkernel which uses Busybox.
They do not include the source code for Busybox.
However, there is a written offer for customers to request source code on CD for the product you purchased, valid for 3 years after you purchased the software product from VMware, by sending a request to an address given of VMware General Counsel, Attn: Open Source Files Request.
Versions of ESXi prior to 5.5 supported an architecture for drivers called vmklinux; essentially,
the VMware kernel supported a framework compatible with Linux drivers ---- you could compile Linux drivers from source code and load them into the vmklinux system. ESXi5.5 introduced a new thing called Native Drivers, but they still support the Linux kernel driver SDK. There is no Linux kernel code, other than drivers themselves, however, they have only copied the Kernel driver API interfaces.