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Sandeep Gupta's Declaration of July 2004 - Redacted - SCO v. IBM
Saturday, July 16 2005 @ 02:21 PM EDT

We finally get to see the previously sealed Sandeep Gupta Declaration in Support of SCO's Opposition to IBM's Cross-Motion for Partial Summary Judgment [PDF], dated July 7, 2004, redacted by SCO.

Heavily redacted, I might add. All the accusations remain, but very little evidence. That surprises you?

It was submitted in opposition to an IBM motion that was denied, but without prejudice to refile or renew after discovery is done, and in case you are not a tech person and so you start to think it sounds convincing, you might wish to read the recently unsealed declaration by Dr. Brian Kernighan, who pointed out that Mr. Gupta failed to first remove unprotectable elements before doing his study, or to analyze whether any similarities were substantial, and that if he had done so, there would be nothing left:

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.

In it, poor Mr. Gupta was given the unenviable task of trying to persuade the court that ELF is copyrighted by SCO and no one can use it without infringing their rights, among other things he argues. You will notice, on page 24, in paragraph 77, Gupta says that he will describe ELF code "that is copied either identically or substantially similarly in Linux." But it's all redacted after that, all the tables, all the specifics, pages and pages that say nothing but REDACTED. You may think it's because they read Groklaw and realized that we'd make fun of them for claiming ownership of something Novell put into the public domain years ago and that isn't protectable in the first place. But no, I think it's because they plan to swing around and argue this point some more when IBM refiles or resubmits their motion or at trial, if it makes it to trial. Or maybe both. He also details the SCO claims regarding RCU, which Dr. Kernighan also answered in detail, as IBM explained in their memorandum in support of their motion:

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 actual expression--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".

You may know of other points you'd argue regarding RCU or other things Mr. Gupta claims. So enjoy. Speaking of fun, can anyone do an OCR or HTML of this declaration? Thanks, if you can. Just copy and paste REDACTED over and over, and you'll be mostly done.

And if you wish to go back and reread Mr. Gupta's declaration submitted in opposition to another IBM summary judgment motion -- the 10th counterclaim -- and review the whole flap about whether he was testifying as an expert or a layman (he said as a layman), IBM's denied motion to strike (see also its reply memo in support), and how MIT's Dr. Randall Davis testified in his declaration that despite Mr. Gupta's efforts as a layman to prove similarity, he, testifying as an expert, found no such similarity, here you go. Davis concluded:

Despite an extensive review, I could find no source code in any of the IBM Code that incorporates any portion of the source code contained in the Unix System V Code or is in any other manner similar to such source code. Accordingly, the IBM Code cannot be said, in my opinion, to be a modification or a derivative work based on Unix System V Code.

Remember all those motions in July of 2004? No wonder the judge finally told them to stop until after discovery. What I ask myself is, how do they get Mr. Gupta to do these declarations? And now that two world-renowned experts have said he is mistaken, will we see any more? And a question to those who think once SCO is in front of a jury in Utah, it will be a slam dunk, imagine these two experts on the stand and then Mr. Gupta saying the things he does. Pretend you are a juror. Who would you believe?

Update: We also now have the Unsealed Exhibits to the Declaration in Support of SCO's Opposition to IBM's Cross Motion for Summary Judgment [PDF], a 1990 USL/Sequent licensing agreement.


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