Bob Mims is correct

Message ID: 258748
Posted By: hgclayton
Posted On: 2005-04-22 17:46:00
Subject: Bob Mims is correct.

In all fairness to Bob, I'd like to point out that he is correct. TSG produced approximately 188,000 lines of SYSV code under seal that TSG claims was infringed.

This is the code that was analysed by Dr. Kernighan in his Declaration docket item 252, which is sealed (and I would dearly love to read). We do know its conclusion from dcoket item 256 which can be seen at
www.groklaw.net/article.php?story=20040827214309785

The stuff relevent to the code in question is in II. B

<<
In his declaration, Mr. Gupta opines that six "routines" or "groupings of code" in Linux are substantially similar to the allegedly copyrighted works: (1) "the Read-Copy-Update [(RCU)] routine"; (2) "the user level synchronizations (ULS) routines"; (3) "IPC code"; (4) certain "header and interfaces"; (5) "System V init code"; and (6) "Executable and Linking Format (ELF) code". (Gupta Decl. ¶ 3.) As is set out in the accompanying Declaration of Brian W. Kernighan (Professor of Computer Science at Princeton University), which is incorporated herein by reference, however, Mr. Gupta failed to appropriately analyze these materials using the Gates Rubber methodology in reaching his conclusions. (See Kernighan Decl. ¶¶ 16-19.) To the extent there are similarities between the routines and groupings of code in Linux identified by Mr. Gupta and the allegedly copyrighted UNIX code, the similarities are only with respect to unprotectable elements of such code. (See id. ¶ 18.) Moreover, the code that Mr. Gupta describes as "substantially similar" or even "identical" is plainly not -- even to a non-technical reviewer. (See id. ¶ 19.)
>>

See also I.B.3 in docket item 247 "IBM's Memorandum in Support of Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross-Motion for Partial Summary Judgment"
http://www.groklaw.net/article.php?story=20040911041449686

I can no longer find the reference to the number of lines in the material submitted with the Gupta declaration, but I remember it being described as approximately 188 klocs. Mr. Mims rounded it up to 200 k, which seems reasonable to me.

Bob Mims has been very good in keeping the actual facts straight in this convoluted fiaSCO. He has restored my faith that there are still real journalists out there. In his case, fair and balanced appears to be an accurate description as opposed to a hollow slogan.

If you are reading this Bob, thank you for you excellent coverage and keep up the good work. There are many of us that greatly appreciate what you are doing.

-hgc

Message ID: 258754
Posted By: nobbutl
Posted On: 2005-04-22 18:32:00
Subject: Re: Bob Mims is correct.

<< Actually, I think that TSG has not really claimed that these lines are infringed upon -- I think they were submitted to show a factual dispute that would be enough to prvent the PSJ from being granted. >>

In other words: Hey, Dale old buddy, not even *we* believe this stuff actually infringes, but if you painted lipstick on it and paraded it in front of an inbred Utah jury, they might split only 10-2 against us".

(1) "the Read-Copy-Update [(RCU)] routine";

Belonged to Sequent, now belongs to IBM. In SysV under a licence, ie, never actually belonged to SCOX or predecessors in interest.

(2) "the user level synchronizations (ULS) routines";

Futexes. Written from scratch for Linux. Never in SysV although the methods and concepts build on Sequent stuff in SysV. Some IBM ppl were involved but so were many non-IBMers. "ULS" is a braindead SCOXism.

(3) "IPC code";

Line by line derivation from SysV not proven. Methods and concepts come from the IEEE POSIX standard, so the expressive element may be so small as to be uncopyrightable.

(4) certain "header and interfaces";

Line by line derivation from SysV not proven. The content is mandated by various standards so the expressive element may be so small as to be uncopyrightable, even if SCOX had enforceable copyrights, which they don't.

(5) "System V init code"

Not part of the Linux kernel and never has been. Line by line derivation from SysV unproven. The expressive element may be so small as to be uncopyrightable, even if SCOX had enforceable copyrights, which they don't.

(6) "Executable and Linking Format (ELF) code"

Reference implementation freely contributed to a standards body by SCOX's predecessors in interest. Estoppel.

Message ID: 258770
Posted By: rgriffith64
Posted On: 2005-04-22 20:24:00
Subject: Re: Mims: Kimball read the sealed docum

> Even if TSG pointed out 188,000 lines of SYSV code,

As IBM pointed out TSG faild to apply the legally required filtration tests. Without the tests applied TSG has nothing. IBM properly applied the tests, or rather hired an outside expert to apply the tests. Nothing was found.

This evidence from TSG is now garbage as TSG a) failed to apply the test in the first place, b) failed to react to IBM pointing out the lack of filtration test, c) failed to react to IBMs expert testimony. Any filing of a filtration test applied now would be dismissable and contempt of courtable.

SCO got to present its 200K lines of evidence and will get to scream some more when they all get thrown out. Their evidence has been shown not to pass the required tests but SCO has set it up so they don't have to face this until well after discovery.

Message ID: 258772
Posted By: hgclayton
Posted On: 2005-04-22 20:33:00
Subject: Re: Mims: Kimball read the sealed docum

Yes, Tom. You are also correct.

IBM challenged TSG's Gupta declaration on many points, and I simply cut to the chase in my very brief summary.

IBM's objection to the Gupta declaration was as follows (still a brief summary):

The code Gupta presents was not provided as part of the response to *2* court orders.

OK, if we accept it anyway, Gupta has *not* been properly presented as an expert witness.

OK, if we accept it anyway, Gupta did not apply the Abstraction, Filter, Comparison test as outlined in Gates Rubber.

OK, if we accpet it anyway, IBM has asked Dr. Kernighan, co-inventor of the C programming Language to apply the AFC test to the material. Dr. Kernighan's expert opinion is that none of the material is competent to support a copyright infringement claim.

(I would love to see a brief challenging Dr. Kernighan's expert testimony.)

It is no surprise to anyone paying attention that His Honor, Judge Kimball did not find any facts in dispute to counter the CC10 PSJ.

I am very disappointed that Judge Kimball decided to blow off the PSJ until close of fact discovery. TSG *MUST* adduce evidence of IBM wrongdoing at some point prior to close of discovery. I could die of old age at almost any time.

Walter is correct. This farce has gone on long enough.

-hgc

Message ID: 258774
Posted By: hgclayton
Posted On: 2005-04-22 20:47:00
Subject: Re: SysV init was Re: Bob Mims is corre

I follow your point, but the developer of the GNU sysvinit package has already clearly stated that he has never had access to any UNIX source code, ever, nada.

To prove copyright infringement, the plaintiff *must* prove that the infringer had access to the infringed material.

Good luck with that, TSG.

Cloning functionality, UI, concepts, methods, processes, ... is not actionable under copyright law.

-hgc

Sucks to be TSG or their bagholders.

TSG == The SCO Group == The Stupid Gits

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