Perens was sued by OSS and its owner, Brad Spengler, in August 2017 over remarks he made about the Grsecurity patch, characterising OSS' efforts as presenting "a contributory infringement and breach of contract risk".
Perens issued a statement on 28 June 2017, detailing his reasons why users should avoid using the Grsecurity patch. "It (the patch) is a derivative work of the Linux kernel which touches the kernel internals in many different places. It is inseparable from Linux and cannot work without it," he wrote.
"It would fail a fair-use test (obviously, ask offline if you don’t understand). Because of its strongly derivative nature of the kernel, it must be under the GPL version 2 licence, or a licence compatible with the GPL and with terms no more restrictive than the GPL. Earlier versions were distributed under GPL version 2."
In the lawsuit, Grsecurity argued that the subscription agreement gave it the right to terminate a client's subscription, thereby only limiting that person's access to future updates or versions (that is, patches that have not yet been developed, created, or released), if the patches are redistributed outside of the explicit obligations under the GPLv2 to the client’s customers.
When she dismissed the case, Magistrate Judge Laurel Beeler agreed with Perens, but denied his bid to invoke the anti-SLAPP (Strategic Lawsuit Against Public Participation) law in California.
This law deals with legal complaints that are directed at stopping public discussion and free speech. California put in place an anti-SLAPP law in 1992.
Spengler and his group then appealed the verdict to the US Ninth Circuit Court of Appeals; they had sought US$3 million in damages in the original lawsuit.
Perens had sought US$526,893.50 as his costs but Magistrate Judge Beeler cut this down to US$259,900.50 in costs and US$2403.12 for lawyers' fees.
She said the money should be paid right away, denying a request by Spengler's lawyers that it be payable only after the appeal was decided.
The Ninth Circuit has now agreed that the amount to be paid is the same as that decreed by Magistrate Judge Beeler. OSS now has a fortnight to seek to have the decision reviewed again or else ask for a hearing from a full bench of the Ninth Circuit court.
Link to judgments: courtesy The Register