Travesty of Justice
"Perens gets nothing personally for his trouble, but his legal team will be paid."
Lawyers would have been paid anyway. The aggrieved still has second thoughts about speaking out.
After three years of legal wrangling, the defamation lawsuit brought by Brad Spengler and his company Open Source Security (OSS) against open-source pioneer Bruce Perens has finally concluded. It was clear that the end was nigh last month when California's Ninth Circuit Court of Appeals affirmed a lower court ruling against …
I thought the case was about recovering legal costs.
Perens then sought to recoup legal expenses under California's Anti-Strategic Lawsuits Against Public Participation (SLAPP) statute, a law designed to penalize litigation brought mainly to discourage free speech and public participation. And a month later he was awarded more than $526,000 in damages.
although the last sentence is confusing.
Not really. Perens at least nominally owes the lawyers the amounts claimed; those are the damages that they are asking the court to award. If Perens and the lawyers agree to settle the debt with a lower amount, that's up to them and unrelated to the anti-SLAPP motion.
(Typically, when a settlement is reached for a lower amount than is asked, the lawyers typically agree to accept the amount in full payment of the debt. But they could insist on being paid the full $526,000).
"He insisted that Perens' statement was opinion, rather than settled legal fact, and that OSS has the right to withhold updates from customers exercising their rights under the GPL."
He insisted that he had the right to ignore a clear contract stipulation, and there is nothing to contradict that.
Ah, America. The best justice money can buy has once again proven that it's the money that defines the justice. If you or me tried that bullshit, we'd be in jail, but because it's a company with hundreds of thousands in the bank, it gets to decide what the outcome of the trial actually is.
Contractual stipulations be damned.
You don't have it straight. You have it backwards. OSS is the big company, and they lost the case against Perens, paying $300,000.
The article concludes, "As to whether OSS's redistribution terms violate the GPL, that has yet to be tested in court."
So OSS has lost one case so far and the second case has not yet been adjudicated, or, possibly, even filed.
Except that was precisely the ruling from the court, which explicitly refused to comment in any way on the accuracy of Bruce Perens opinion of the law, emphasising that he is not a lawyer, and the statements were clearly and explicitly marked as opinion.
Or having found an excuse to avoid providing a ruling on the GPL they grabbed it and ran away as fast as possible, which is probably a sensible thing to do.
Um, no. You still have this crooked.
This started out as a defamation claim. Perens' legal team argued that he was expressing an opinion that is protected under the First Amendment. The courts agreed. End of defamation claim.
Perens then pursued compensation under a law intended to prevent monied parties shutting down free speech through the threat and cost of a lawsuit. Since the first court had ruled that he was expressing an opinion that was protected speech, the courts again agreed. Cue payment to Perens' legal team.
The thing is: all of this follows *only if Perens asserts that he is expressing a protected opinion*. If Perens were to claim that he is expressing a fact about the GPL, we have whole different trial (or trials).
Short version: the court did not "run away" from the GPL question, because that question was never in court to begin with. This entire case was not about what the GPL says, but about Perens' right to *express his opinion* on what the GPL says.
While that is how the case played out, that argument hinged on Perens status as for his opinions: does his opinion have any weight in law?
The defamation argument attempted to argue that as an expert in the field his opinion had legal weight. If the court had accepted this argument, the court would have been forced to consider the correctness of his opinion, as it would have been considered exempt from the “first amendment” defence. Most professions aren’t entitled to claim their professional opinions are first amendment protected if they are wrong.
This case was about my right to state my opinion. We did not wish the court to rule on anything else, we did not ask them to do so, the other side DID. The other side wanted the court to decide that they were not in violation of the GPL, in a defamation case, so that my statement would be an untrue fact. But this was a crazy strategy, because even if the court _did_ decide, it would still not have been a litigated fact when I stated it. And the court was, of course, smart enough to only try defamation in a defamation case. IMO Mr. Chaabra, the attorney for the other side, never had a chance with this and should have known. He also should have known not to bring a defamation case in a state with a strong anti-SLAPP law. The court did what all of the experienced lawyers I know (and that's a lot) said it would.
If you wish to dedicate the rights of your copyrighted work in Linux to be used in a copyright lawsuit, or if you wish to fund such a lawsuit, I'd be happy to hear from you. I would of course work on such a thing for free.
Actually, my attorney in the appeal, Jamie Lee Williams, stated that attorneys publish their opinions online all of the time and do depend on protection under the 1st amendment. It's there in the appeal video, on Youtube. https://www.youtube.com/watch?v=ct-yUg0oUww&t=894s
the court also discusses in detail when an opinion is protected and when it is not.
The difference is that when they publish their opinions, they are not acting as _your_ legal counsel.
Most professions aren’t entitled to claim their professional opinions are first amendment protected if they are wrong.
Bruce Perens is not a lawyer. He is not a professional on contract law. He has no training or credentials that would lead anyone to believe he is an expert on the subject. His opinions were not expressed in a report he was paid to produce for a client, but instead a comment he posted on his own blog.
I'm sure you're trying to make some point about something, but whatever it is, it has nothing to do with the current topic.
"He insisted that he had the right to ignore a clear contract stipulation, and there is nothing to contradict that."
Apart from the fact that if the contract is breached you have to fall back on copyright law. This is also why arguing the GPL is invalid is a bad idea. GPL and creative commons are NOT "public domain" by any stretch of the imagination.
GPL is a license issued by the copyright owners to use and distribute the software (plus derivations) under specific conditions. Without that license you have no permission to use or distribute the software and _selling_ copyright items you have no license for is regarded as a big no-no under USA law....
If OSS is found in breach of copyright laws to the tune of making more than (or causing more financial damage than) $50k, under american law it switches from civil to criminal penalties.
GPL is a very good example of using the "system" against those who wish to "use the system" to destroy the rights of the commons.
This is why vanishingly few GPL cases ever make it to the inside of a courtroom and in the ones that have, the infringers have been handed their heads on a platter by unsympathetic judges.,
Don't worry, I'm sure that this will happen.
the FSF have been itching to have a case actually get into USA courts for years - every single USA company they've tapped has folded long before it got there.
The factor that OSS appears to be one man (and a dog) should be taken into account. At the end of the day I suspect it will sink without trace when the FSF come calling.
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