|
|
| The Unsealed Declaration of Brian Kernighan |
 |
|
Monday, June 27 2005 @ 09:36 PM EDT
|
We have the Unsealed Declaration of Brian W. Kernighan [PDF] which has just been unsealed so we can read it. When you read it, you'll understand why Judge Kimball wrote that SCO had failed to present credible evidence of copyright infringement. It's huge, a full 97 pages. But only 13 pages of the PDF are the declaration itself, so we've made that its own PDF. To be more accurate, Frank Sorenson did it for us. Thank you, Frank. We'll have the exhibits for you shortly. UPDATE: We have them now.
Here are all the exhibits: Whew. What a day. 5 stories in one day. This declaration was submitted almost a year ago by IBM, and discussed in IBM's
Memorandum in Support of its Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross-Motion for Partial Summary Judgment, and so we had a glimpse of it earlier, in that memorandum. Now we can read it in full. IBM quoted from it in part, but it didn't use the sentence that I think is the most damning. Kernighan writes about SCO's Sandeep Gupta's analysis of alleged "substantial similarity" between certain "routines" and "groupings of code" in Linux and "copyrighted works allegedly owned by SCO", and in paragraphs 3 and 4 he says this: 3. In summary, I find fundamental errors in Mr. Gupta's conclusions. His conclusions of substantial similarity are flawed because he fails to exclude from comparison unprotectable elements of the allegedly copyrighted code, and he uses an indefensible standard for what qualifies as "substantially similar" code. 4. If unprotectable elements are excluded from the comparison and an appropriate standard of similarity is applied, there is no similarity between the parts of Linux identified by Mr. Gupta and the allegedly copyrighted works. "An indefensible standard." Imagine being Mr. Gupta reading those words from the renowned Dr. Kernighan. Now imagine job hunting someday. I imagine Microsoft might hire him, now that I think of it. Here's what IBM wrote in its memorandum last year:
As described in detail in the Declaration of Brian W. Kernighan, which IBM is submitting together with IBM's reply memorandum in support of its cross-motion for partial summary judgment on its Tenth Counterclaim, Mr. Gupta fails to perform any filtration at all. The Tenth Circuit explained in Gates Rubber that "[f]iltration should eliminate from the comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scenes a faire material, and other unprotectable elements suggested by the particular facts of the program under examination." Id. at 834. As the materials identified in Mr. Gupta's declaration are all unprotectable, they do not, and cannot, support Mr. Gupta's opinion of "substantial similarity". (SeeKernighan Declaration ¶¶ 18, 20-25.)
For example, Mr. Gupta opines that "Linux RCU is substantially similar to UNIX RCU". (Gupta Decl. ¶ 10.) Mr. Gupta's entire analysis, however, is focused on unprotectable ideas that must be filtered during any assessment of "substantial similarity". See Gates Rubber, 9 F.3d at 836 ("One of the fundamental tenets of copyright law is that protection extends only to the author's original expression and not to the ideas embodied in that expression."). Mr. Gupta himself describes the allegedly similar material he identifies in his declaration as "routine[s]" (¶¶ 3, 5, 10) and "methods" (¶¶ 6, 7) that "perform the same five acts" (¶ 11). This material is plainly unprotectable. See Gates Rubber, 9 F.3d at 836-37 (noting that "the main purpose or function of a program will always be an unprotectable idea" and that "the expression adopted by the programmer is the copyrightable element in a computer program . . . the actual processes or methods embodied in the program are not"). Moreover, when the actualexpression--i.e., the code--in what Mr. Gupta calls "Linux RCU" and "UNIX RCU" is compared side-by-side, as in Mr. Gupta's own Exhibit A (in columns 1 and 4), even the untrained reviewer can determine that they are completely different and not even close to being "similar".
In addition, as is also described by Dr. Kernighan, Mr. Gupta also fails to perform any analysis of whether the alleged similarities he identifies are "substantial". (See Kernighan Decl. ¶¶19, 26-27.) "Substantial similarity" may be found, according to the Tenth Circuit, only where "those protectable portions of the original work that have been copied constitute a substantial part of the original work--i.e., matter that is significant in the plaintiff's program". Id. at 839. Mr. Gupta does not, in his declaration, make any attempt to demonstrate that the code he identified (which in total consists of no more than a couple hundreds lines of code (out of programs that are each millions of lines long) is significant.
Far from constituting a reliable method for determining "substantial similarity", therefore, the Gupta Declaration instead employs an unidentified methodology that ignores the requirements of Gates Rubber, and IBM respectfully submits that it should be stricken in its entirety for this additional reason. Now, you can read Dr. Kernighan's own words and examine the attachments for yourself, unless like me, after this incredible day of PDFs flying at us, you are brain-fatigued and want to save it for tomorrow.
|
|
|
|
| Authored by: snorpus on Monday, June 27 2005 @ 10:48 PM EDT |
| Use HTML mode if necessary, and don't forget to preview. ---
73/88 de
KQ3T ---
Montani Semper Liberi
Comments Licensed: http://creativecommons.org/licenses/by-nc/2.0/ [ Reply to This | # ]
|
| |
| Authored by: rsteinmetz70112 on Monday, June 27 2005 @ 10:50 PM EDT |
Last I heard IBM and SCOG were discussing which things to release from under
seal and this was one of the items under discussion. SCOG issues a list of
things they would release but IBM never did. This is one of IBM's documents.
Did I miss something?
I'm glad this was released. It will really nail SCOG.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
|
- I'm Confused - Authored by: lazy on Monday, June 27 2005 @ 11:30 PM EDT
- I'm Confused - Authored by: Anonymous on Tuesday, June 28 2005 @ 03:35 PM EDT
- I'm Confused - Authored by: Anonymous on Wednesday, June 29 2005 @ 05:54 PM EDT
- I'm Confused - Authored by: Anonymous on Tuesday, June 28 2005 @ 01:00 AM EDT
| |
| Authored by: Anonymous on Monday, June 27 2005 @ 10:53 PM EDT |
You know the drill, or you can find it on the Post a Comment page.
---
--Bill P, not a lawyer. Question the answers, especially if I give some.[ Reply to This | # ]
|
| |
| Authored by: rp$eeley on Monday, June 27 2005 @ 11:46 PM EDT |
| Functional link:
IBM-456.pdf
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 04:49 AM EDT |
Two points:
Point one:
Brian says Sanjay’s code is too small a part of *NIX to be a copyright
violation. That is not a valid defense at this point. SCO can say that if it is
only a question of quantity and quality of the copying then give us more
discovery, and we may find more and better examples, that could pass this test.
If I were the judge, I would agree and give them discovery.
Note that Brian gives other good reasons for dismissing Sanjay’s code.
Point two:
This is based on my understanding, which could be wrong (not again!).
The judge ruled that Sanjay was not an expert (or at least had not been
qualified as one by SCO), nor did he have first hand knowledge of the facts.
Therefore, the judge did not accept Sanjay’s claim of infringement. What the
judge did accept was that there was similar code in both Linux and Unix, and
that given more discovery, SCO might find code or programmer’s notes that an
expert could later testify infringed.
Here I agree with Dr. Phil; what was he thinking! If a guy comes up to me with
a piece of wood and says he has a forest, OK, let’s do discovery. If a guy comes
up to me with a piece of plastic and says he has a forest, I say case dismissed.
The judge should not (and may not have) considered Sanjay’s code in his
decision.
But my understanding is that the judge did not think Sanjay’s deposition
demonstrated any true infringement, just that he showed code that might
infringe, showing that there could be more code that does infringe.
Dennis
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 05:27 AM EDT |
This really gets to the crux of the issue as far as a member of the public is
concerned. Here is the original author of Unix dismissing the best evidence SCO
has found, and giving Linux a clean bill of health. Any business executive
still nervous about using Linux due to the "IP mess with SCO" should
read this document, and relax.
Philip[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 06:44 AM EDT |
| NOW what's stopping your case from proceeding? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 08:17 AM EDT |
| ... and the result is devastating! [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 09:39 AM EDT |
I am wondering about Kernigan's notation that Gupta had taken lines from
different sections of code, and in fact from different files, and
put it together as one block and then said that it matched some code from
SCO.
I'm not a lawyer, but couldn't this constitute fraud?[ Reply to This | # ]
|
- Fraud? - Authored by: miniver on Tuesday, June 28 2005 @ 10:40 AM EDT
- Fraud? - Authored by: Anonymous on Tuesday, June 28 2005 @ 10:40 AM EDT
- Fraud? - Authored by: surak on Tuesday, June 28 2005 @ 05:26 PM EDT
- Fraud? - Authored by: Anonymous on Wednesday, June 29 2005 @ 01:35 AM EDT
| |
| Authored by: overshoot on Tuesday, June 28 2005 @ 09:47 AM EDT |
| Particularly interesting to me is Prof. Kernighan's statement that Mr. Gupta
took a line here, a line there, glued them together into two collections, and
declared the collection "similar."
IMHO that sounds very, very much like Mr.
Gupta was manufacturing evidence.
Put another way, perjury. [ Reply to This | # ]
|
- Ouch! - Authored by: Anonymous on Tuesday, June 28 2005 @ 10:15 AM EDT
- Ouch! - Authored by: Anonymous on Tuesday, June 28 2005 @ 10:58 AM EDT
| |
| Authored by: blacklight on Tuesday, June 28 2005 @ 10:53 AM EDT |
My assessment at this point is that SCOG is on life support as far as its case
against IBM is concerned. Once the discovery ritual is done, we yank the
breathing tube and wish SCOG the best of luck and a swift recovery. ROTFL.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, June 28 2005 @ 05:25 PM EDT |
The courts don't really care that this is Brian Kernighan. They can see that
his credentials are a lot better than Gupta's, but still, there are a number of
other people IBM could have chosen that fit that bill.
So why did they pick Kernighan? I think that they are playing SCO's game, and
playing it better than SCO. I think the point was public relations.
Programmers and engineers know who Kernighan is; they give him sky-high
credibility. When he makes a declaration like this, all the technical people
immediately know to completely discount SCO's allegations of infringement.
IBM is playing the PR game against SCO. But IBM is doing it much more smoothly
and quietly, with concrete evidence so that everybody (at least, everybody
technical) can see that IBM is the one telling it straight.
MSS[ Reply to This | # ]
|
| |
| Authored by: inode_buddha on Wednesday, June 29 2005 @ 03:33 AM EDT |
Boggles my mind, these guys are actually gonna take on the ones who created the
whole thing in the first place?
---
-inode_buddha
Copyright info in bio
"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 29 2005 @ 05:58 AM EDT |
Has anybody other than me noticed the
UPDATE: We
have them now.
an ominous proclamation against SCO?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Wednesday, June 29 2005 @ 10:17 AM EDT |
IANAL. Some of the discussion here has mixed me up. I hope someone can write
a brief note clarifying some questions.
First, assuming the
infringement claim is still alive and in play at this point, is the full
substantial similarity test even required during discovery? It seems like
putting the cart before the horse: isn't trial the appropriate place for
judging the substantiality of any copying? I would have expected that in
discovery the requirements are only (A) some preliminary evidence is found that
some copying exists and it may be substantial enough (see question about 2nd
circuit tests below), and (B) some disagreement exists that needs to go to trial
to resolve. If this is so in my mind Gupta's declaration may be enough for part
A if he's received as a credible witness for this purpose. And perhaps the
disagreement between Gupta and Kernighan is enough to satisfy part B. That's if
the court isn't totally swayed by Kernighan's rebuttal. Are these expectations
wrong? If so, does it mean that all the expert witness evidence is
collected during discovery? Or can new expert witness evidence be presented at
trial, after the raw evidence is collected during discovery?
Second, the
10th circuit's test. Am I wrong in thinking they generally follow the 2nd
circuit instead of the 9th? In the 2nd's test is it enough to only show
probative similarity at this point rather than substantial
similarity? I thought probative similarity could be very small: a single
critical error or line. This could be "substantially similar" for the purpose
of showing derivation even if not showing (yet) "improper
appropriation". [ Reply to This | # ]
|
|
|
|
|
