Friday, 07 February 2020 11:52

Linux kernel patch maker's appeal against Perens' legal costs thrown out

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Linux kernel patch maker's appeal against Perens' legal costs thrown out Image by OpenClipart-Vectors from Pixabay

Open source advocate Bruce Perens has prevailed in a legal stoush with Open Source Security, the company that offers a patch known as Grsecurity for the Linux kernel, with a court ratifying that OSS must pay Perens' legal costs as awarded in June 2018.

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."

The GPL Version 2 states that code for any software that is issued under the licence has to be provided in the event that it is redistributed. Patches under any other licence would not be able to be redistributed in this way.

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.

The case was dismissed in December 2017 and two months later Perens filed a motion seeking his lawyers' fees and costs.

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

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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