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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.


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