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posted by janrinok on Saturday February 10 2018, @01:08AM   Printer-friendly
from the slapp-me-again,-I-like-it dept.

http://www.theregister.co.uk/2018/02/08/bruce_perens_grsecurity_anti_slapp/
http://perens.com/2018/02/08/bruce-perens-seeks-mandatory-award-of-legal-fees-for-his-defense-in-open-source-security-inc-and-bradley-spengler-v-bruce-perens/

Having defeated a defamation claim for speculating that using Grsecurity's Linux kernel hardening code may expose you to legal risk under the terms of the GPLv2 license, Bruce Perens is back in court.

This time, he's demanding Bradley Spengler – who runs Open Source Security Inc and develops Grsecurity – foots his hefty legal bills, after Spengler failed to successfully sue Perens for libel.

Perens, a noted figure in the open source community, and his legal team from O'Melveny & Myers LLP – as they previously told The Register – want to be awarded attorneys' fees under California's anti-SLAPP statute, a law designed to deter litigation that aims to suppress lawful speech.

That deterrence takes the form of presenting unsuccessful litigants with the bill for the cost of defending against meritless claims.

"Plaintiffs Open Source Security, Inc. and Bradley Spengler sued Defendant Bruce Perens to bully him from expressing his opinions that Plaintiffs' business practices violate Open Source licensing conditions and to discourage others from expressing the same opinions," Perens' latest filing, submitted to a US district court in San Francisco today, declared.

"Rather than allowing the public to judge Plaintiffs' contrary opinions through public debate, Plaintiffs tried to 'win' the argument on this unsettled legal issue by suing him."

[...]

Perens is asking for $667,665.25 in fees, which covers 833.9 hours expended on the litigation by numerous attorneys and a $188,687.75 success fee agreed upon to allow Perens to retain representation he might not otherwise have been able to afford.


Original Submission

 
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  • (Score: 5, Informative) by requerdanos on Saturday February 10 2018, @01:39AM (27 children)

    by requerdanos (5997) Subscriber Badge on Saturday February 10 2018, @01:39AM (#635831) Journal

    "Plaintiffs Open Source Security, Inc. and Bradley Spengler sued Defendant Bruce Perens to bully him from expressing his opinions that Plaintiffs' business practices violate Open Source licensing conditions and to discourage others from expressing the same opinions,"

    I hereby observe that the GRSecurity folks claim to be GPL (they have to, in order to profit from the GPL software that is their actual product, the Linux kernel), but impose additional restrictions on those who receive their code. Under the GPL, additional restrictions are forbidden. Thus, they are in arguably deliberate violation of the terms of the license as as such, their rights under the license are self-terminated.

    I know license-blah-blah is almost as bad as reading terms until you spot the "I Agree Now Shut Up And Go Away" button, but this is a pretty popular, well-established license they're violating. Perens was well-familiar with said license before GRSecurity was ever a thing.

    The timeline was basically as follows:

    • The Linux kernel was perceived to suck at security
    • Linus said "Bah, security, not important" or words to that effect.
    • Zounds! said GRSecurity. Product: A GRSecurity hardened kernel, provided as a patch to the original kernel!
    • Which is GPL, so that's not only legal, but a cool and healthy and happy thing!
    • And don't forget, the patch is useless by itself except perhaps for study or personal scholarship!
    • And if you like it, pay the GRSecurity folks to subscribe to it! Best way to stay up to date.
    • But since it's GPL it's not just free as in libre, it's also free as in beer.
    • So you can effectively subscribe or not, according to whether you want to support GRSecurity or not.
    • Zounds! again! said GRSecurity, most people are not paying us!
    • I mean, that is how every other free software has gone since beginning of time...
    • But we are special and ours should be different!
    • So we are taking our ball and going home, and only friends who pay us can come play with us.
    • Except guess what? It's not your ball; the GPL says rights to use and distribute it belong to me and Bruce Perens and everyone else.
    • Want to dictate license terms? Go write your own kernel.
    • Note, not "Sue people who notice the violations you are trying to get away with." That's evil.
    • Also, in future, look up words to see what they mean before making them your company name.

    An item or two may be out of place, but whatever. This is essentially the easy-to-understand TLDR of GRSecurity's confusion that they are trying to sue their way out of.

    Starting Score:    1  point
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       Insightful=1, Informative=3, Total=4
    Extra 'Informative' Modifier   0  
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    Total Score:   5  
  • (Score: 0) by Anonymous Coward on Saturday February 10 2018, @01:52AM

    by Anonymous Coward on Saturday February 10 2018, @01:52AM (#635837)

    thank you for making this TLDR version.

    Pay up d-bags of "security" before you lose the name

  • (Score: 2) by c0lo on Saturday February 10 2018, @01:57AM (2 children)

    by c0lo (156) on Saturday February 10 2018, @01:57AM (#635838) Journal

    Note, not "Sue people who notice the violations you are trying to get away with." That's evil.

    But that's a blatant infringement to the constitutional right to sue!!! I'm sure there's an amendment somewhere.

    I... I'll... I'll sue ya! [youtube.com]

    (grin)

    --
    https://www.youtube.com/watch?v=aoFiw2jMy-0
    • (Score: 2) by requerdanos on Saturday February 10 2018, @02:48AM (1 child)

      by requerdanos (5997) Subscriber Badge on Saturday February 10 2018, @02:48AM (#635844) Journal

      constitutional right to sue!!!

      I'll see your right-to-sue and raise you one anti-SLAPP [anti-slapp.org].

      • (Score: 2) by c0lo on Saturday February 10 2018, @03:36AM

        by c0lo (156) on Saturday February 10 2018, @03:36AM (#635854) Journal

        +0 Not funny

        --
        https://www.youtube.com/watch?v=aoFiw2jMy-0
  • (Score: 5, Informative) by Anonymous Coward on Saturday February 10 2018, @06:37AM (2 children)

    by Anonymous Coward on Saturday February 10 2018, @06:37AM (#635898)

    You left out a nice comment by Linus on the GR folk

    The thing is a joke, and they are clowns. When they started talking about people taking advantage of them, I stopped trying to be polite about their bullshit. Their patches are pure garbage.

    • (Score: 0) by Anonymous Coward on Saturday February 10 2018, @07:14AM (1 child)

      by Anonymous Coward on Saturday February 10 2018, @07:14AM (#635914)

      The patches are not pure garbage. Linus is not an expert on security.
      (With the CPU backdoors, however, such security may be functionally irrelevant in the real world)

      • (Score: 0) by Anonymous Coward on Saturday February 10 2018, @06:09PM

        by Anonymous Coward on Saturday February 10 2018, @06:09PM (#636079)

        Note his words, the PATCHES are garbage, not the actual changes. When Spengler tried to mainline some of the changes to the kernel, he submitted them as a single gigantic diff of around a million changes. Which, at best was really an effort to reduce the amount of work he has to do (since it wasn't a fully up-to-date patch), or at worst, knowing they would be rejected. And, why wouldn't or shouldn't something like that get rejected? He knows the rules and has to follow them like everyone else.

  • (Score: -1, Spam) by Anonymous Coward on Saturday February 10 2018, @07:09AM

    by Anonymous Coward on Saturday February 10 2018, @07:09AM (#635913)

    Timeline is this:

    GRSec closes patches.
    MikeeUSA is unhappy about this.
    Informs Spengler that he is going to sue GRSec one way or another.
    MikeeUSA Complains on the chans, the linux mailing list, the debian mailing list, ubuntu mailing list, redhat mailing list, writes articles for websites such as this, explains how GRSec is violating the license, explains the law, etc.
    Everyone says MikeeUSA is nuts, not a lawyer, not a programmer either, etc.
    MikeeUSA contacts keyholders in the free/opensource community. RMS, Perens, etc.
    Discussion ensues (forwarded to linux and debian mailinglists).
    Perens publishes an article that mirrors MikeeUSA's legal opinion (with the exception of the contributory copyright addendum).
    Brad Spengler sues Perens.
    and here we are .

  • (Score: 3, Interesting) by TheRaven on Saturday February 10 2018, @12:40PM (16 children)

    by TheRaven (270) on Saturday February 10 2018, @12:40PM (#635980) Journal

    But since it's GPL it's not just free as in libre, it's also free as in beer.

    This doesn't follow. GPL'd code can be as expensive as you like, but once you have a copy you are legally allowed to distribute the copies (and to charge as much or as little as you like for them). The problem for GrSecurity was that they couldn't stop their customers from doing exactly this: taking the patches that they'd paid GrSecurity for and giving them away for free to everyone else.

    Their attempt to dodge this was by saying that their customers were paying for a subscription service which provided them with patches. They were at liberty to distribute the patches if they wanted to, but doing so would terminate their subscription. This meant that they weren't technically violating the GPL - people didn't give up any of the rights that the GPL gave them. If they exercised them then they would retain the rights to all of the GrSecurity patches that they'd received already, they just wouldn't get any more.

    The problem for GrSecurity was that most people didn't think that this was a good deal and most of the ones that wanted their patches were happy with older versions that other people had forward ported, so didn't pay them anything. They had a business model that didn't make sense and couldn't make it work.

    --
    sudo mod me up
    • (Score: 2, Informative) by Anonymous Coward on Saturday February 10 2018, @01:19PM (15 children)

      by Anonymous Coward on Saturday February 10 2018, @01:19PM (#635993)

      >""" Their attempt to dodge this was by saying that their customers were paying for a subscription service which provided them with patches.
      >They were at liberty to distribute the patches if they wanted to, but doing so would terminate their subscription. This meant that they weren't
      >technically violating the GPL - people didn't give up any of the rights that the GPL gave them. If they exercised them then they would retain the
      >rights to all of the GrSecurity patches that they'd received already, they just wouldn't get any more. """

      Incorrect. The GPLv2 forbids the imposition of additional terms. GRSecurity imposed an additional term. No you cannot be "cute" by placing the additional term in a separate writing, verbal agreement, or course of doing business: it is an additional term no-matter how you memorialize it (or even if you choose not to memorialize it).

      The act of adding an additional term in-and-of-itself is a violation of the license grant.

      • (Score: 3, Interesting) by requerdanos on Saturday February 10 2018, @02:36PM (5 children)

        by requerdanos (5997) Subscriber Badge on Saturday February 10 2018, @02:36PM (#636005) Journal

        They were at liberty to distribute the patches if they wanted to, but doing so would terminate their subscription. This meant that they weren't technically violating the GPL

        Incorrect. The GPLv2 forbids the imposition of additional terms. GRSecurity imposed an additional term. No you cannot be "cute" by placing the additional term in a separate writing, verbal agreement, or course of doing business: it is an additional term no-matter how you memorialize it (or even if you choose not to memorialize it).

        This is perhaps the best explanation I've read so far about why the "Dude even though they are violating, they totally are not, man, they violate the license in the next paragraph so it doesn't count!" folks are not correct wrt the GPL. Such statements may be in "modern presidential" style, but license violations count as license violations.

        Additional terms? You're in violation of the GPL.

        GRSecurity's strategy? Additional terms (a specific penalty if you exercise specific rights under the GPL).

        GRSecurity's PR? Yeah, there are additional terms, but after we penalized you, you still did something allowed under the GPL so we're totally not violating it and besides we'll sue you.

        [GP:] The problem for GrSecurity was that most people didn't think that this was a good deal

        The problem for GRSecurity is that their clever violate-the-GPL-and-say-we-aren't scheme was revealed in a very public way.

        • (Score: 0) by Anonymous Coward on Saturday February 10 2018, @03:58PM (2 children)

          by Anonymous Coward on Saturday February 10 2018, @03:58PM (#636024)

          >The problem for GRSecurity is that their clever violate-the-GPL-and-say-we-aren't scheme was revealed in a very public way.

          By who? Who was complaining about it so much that Perens had to chome in (yes, chome in, a stronger form of chime. like chime but with BASS)

          • (Score: 2) by requerdanos on Saturday February 10 2018, @05:12PM (1 child)

            by requerdanos (5997) Subscriber Badge on Saturday February 10 2018, @05:12PM (#636059) Journal

            By who?

            You seem to be a dozen or so messages into this rant about your friend, why don't you just go marry him? Maybe you two at least get a room? Leave us out of it?

            Sure, there are a couple here yapping that GRSecurity does no wrong because their violation is wearing attractive clothing, but by and large, this discussion is being held among a group of people who respect the GPL, and recognize its violations regardless of who's pointing them out.

            If there were people who criticized your friend, and they were *wrong* on the *internet*, then I am sorry for the hurt feelings you've suffered, but we don't control that here. Get therapy or make a meme or something constructive.

            Wanting to marry children, goats, space aliens, or rock outcroppings are not mainstream positions, acknowledged, but someone who holds such a position and also notices a GPL violation has in the end noticed a GPL violation, and the GPL violation is the noteworthy bit in the context of software (as opposed to "marriage flexibility") freedom. Among different surroundings, it might be different.

            I guess what I am trying to say is "My! That's interesting. Run along, now."

            • (Score: 0) by Anonymous Coward on Monday February 12 2018, @08:38AM

              by Anonymous Coward on Monday February 12 2018, @08:38AM (#636611)

              Before Bruce Perens published his article, everyone was saying MikeeUSA's analysis was wrong.
              You might notice that Bruce Perens article has the same rhyme and meter, in places, as MikeeUSA's emails to Bruce Perens (which can be seen on the public debian mailing lists) on the issue from a week prior to the publication.

              Only after Bruce Perens published the points MikeeUSA made did anyone* in the opensource community acknowledge it's correctness.
              Most laughed at MikeeUSA claiming he was neither a programmer nor a lawyer, and then repeated their own argument about since the additional term is not penned into the very text of the GPL file all is kosher.
              They also said that no one who likes cute young girls and accepts (Devarim chapter 22, verse 28, hebrew) child marriage of girls as fine, could ever have the mental capacity to be a programmer or attorney.

              *Other than other lawyers.

        • (Score: 0) by Anonymous Coward on Monday February 12 2018, @08:48AM

          by Anonymous Coward on Monday February 12 2018, @08:48AM (#636613)

          It would be nice if a linux kernel rights holder would sue GRSecurity and Brad Spengler for the copyright violation.
          Brad Spengler already attacked one of the old original FOSS luminaries (A set which includes: RMS, ESR, Bruce Perens, Prof. E. Moglen).
          Is not turnabout fair play?

        • (Score: 0) by Anonymous Coward on Monday February 12 2018, @08:50AM

          by Anonymous Coward on Monday February 12 2018, @08:50AM (#636614)

          "The problem for GRSecurity is that their clever violate-the-GPL-and-say-we-aren't scheme was revealed in a very public way."

          Who campaigned for this to be revealed?

      • (Score: 3, Interesting) by TheRaven on Saturday February 10 2018, @05:52PM (8 children)

        by TheRaven (270) on Saturday February 10 2018, @05:52PM (#636074) Journal
        They weren't imposing additional terms to the code that you received under the GPL. You were free to take their patches and use them under the terms of the GPL. If you did distribute them, then nothing happened to your rights to the code that you had already received under the terms of the GPL. You retained the rights granted to you under the GPL, you retained the obligations that the GPL placed you under, and no others applied. You just wouldn't be given any more code under the terms of the GPL by GrSecurity.

        The extra terms were not related to the code that you received under the GPL. They only applied to code that you had not yet received, and as soon as you did receive the code then the only terms that applied to that patch set were those present in the GPL.

        I am completely free, under the GPL, to give you code for free and charge you for bug fixes or new features. That is something that Stallman not only accepts, but actively encourages and is inherent to the business model of companies like Red Hat. Similarly, if you don't want to pay me for fixes or features then you are free to ask someone else to implement them instead. I am free to impose any terms that I like in the contract that I agree with you for writing new code, because that's independent of the license under which I give you the code. At any point, either of us may terminate the agreement under which I provide you with new code. You still retain the rights that I have granted to you for existing code.

        --
        sudo mod me up
        • (Score: 0) by Anonymous Coward on Sunday February 11 2018, @11:32PM (7 children)

          by Anonymous Coward on Sunday February 11 2018, @11:32PM (#636489)

          this is the correct analysis. i don't think it needed to come to this, though. i think grsecurity could have came up with a donation/business model that worked instead of being lazy about it then getting mad at people for not just donating blindly until some unknown threshold of financial appreciation had been reached. this is what happens when programmers do the business, the PR and the marketing, i guess.

          • (Score: 0) by Anonymous Coward on Monday February 12 2018, @08:27AM (6 children)

            by Anonymous Coward on Monday February 12 2018, @08:27AM (#636609)

            No it is not. And yes, I am a lawyer.

            The license agreement is not between the distributor and the code, nor the distributee and the code, nor the licensee and the code.
            The license agreement is between the licensee and the licensor, and the licensor and the distributee (and the licensor and the distributee).

            The license forbids the addition of any additional terms be imposed upon the relationship between the licensee and the further distributee regarding their relationship arising around the licensed article (the code).
            GRSecurity no only imposes a no-distribution term upon said relationship (a relationship only existing in relation to the licensed article (the code)), it threatens the distributee with a penalty if the distributee violates the additional no-distribution term.

            Yes. GRSecurity is violating the license grant by adding an additional term to the agreement between the parties (between itself and the further distributes).

            • (Score: 0) by Anonymous Coward on Monday February 12 2018, @08:29AM (5 children)

              by Anonymous Coward on Monday February 12 2018, @08:29AM (#636610)

              *not only

              No it is not. And yes, I am a lawyer.

              The license agreement is not between the distributor and the code, nor the distributee and the code, nor the licensee and the code.
              The license agreement is between the licensee and the licensor, and the licensor and the distributee (and the licensor and the distributee).

              The license forbids the addition of any additional terms be imposed upon the relationship between the licensee and the further distributee regarding their relationship arising around the licensed article (the code).
              *GRSecurity not only imposes a no-distribution term upon said relationship (a relationship only existing in relation to the licensed article (the code)), it threatens the distributee with a penalty if the distributee violates the additional no-distribution term.

              Yes. GRSecurity is violating the license grant by adding an additional term to the agreement between the parties (between itself and the further distributes).

              • (Score: 2) by TheRaven on Monday February 12 2018, @11:03AM (4 children)

                by TheRaven (270) on Monday February 12 2018, @11:03AM (#636630) Journal
                If you were a lawyer, then you would know that you shouldn't be giving legal advice to someone who is not your client, though perhaps that's why you are anonymous. You would also know that the GPL doesn't prohibit adding extra terms, it requires that the recipient receives the same rights that you receive, which is not quite the same thing. The recipient does receive the same rights to the Linux kernel + GrSecurity that GrSecurity receives to the Linux kernel. They are also granted an extra right to future work by GrSecurity in exchange for a consideration (money and a promise not to distribute the GrSecurity code).
                --
                sudo mod me up
                • (Score: 0) by Anonymous Coward on Tuesday February 13 2018, @01:16PM (3 children)

                  by Anonymous Coward on Tuesday February 13 2018, @01:16PM (#637088)

                  >You would also know that the GPL doesn't prohibit adding extra terms, it requires that the recipient receives the same rights that you receive, which is not quite the same thing.

                  From section 6:
                  "You may not impose any further
                  restrictions on the recipients' exercise of the rights granted herein."

                  The text of the grant disagrees. You may not impose any further restrictions...
                  IE: No additional terms.

                  GrSecurity requires distributees to agree to it's no-distribution restriction, in writing.

                  (Also note:)
                  (4. You may not copy, modify, sublicense, or distribute the Program
                  except as expressly provided under this License. )

                  >If you were a lawyer, then you would know that you shouldn't be giving legal advice to someone who is not your client, though perhaps that's why you are anonymous.
                  Trying to threaten me because you don't like what I say?
                  I am a lawyer. I am a programmer. Deny it all you want.
                  Who do you think induced the action you see occuring?
                  Why do you think said arguments were accepted?
                  Is it because "I'm not a lawyer" and "don't know what I'm talking about" or is it because I am an attorney and I do know what I'm talking about?

                  >If you were a lawyer, then you would know
                  Sometimes one must act for the greater good. Sometimes one must inform lay-people of their legal rights... so that they may know that they have them in the first place.

                  ----
                  " 4. You may not copy, modify, sublicense, or distribute the Program
                  except as expressly provided under this License. Any attempt
                  otherwise to copy, modify, sublicense or distribute the Program is
                  void, and will automatically terminate your rights under this License.
                  However, parties who have received copies, or rights, from you under
                  this License will not have their licenses terminated so long as such
                  parties remain in full compliance."

                  " 6. Each time you redistribute the Program (or any work based on the
                  Program), the recipient automatically receives a license from the
                  original licensor to copy, distribute or modify the Program subject to
                  these terms and conditions. You may not impose any further
                  restrictions on the recipients' exercise of the rights granted herein.
                  You are not responsible for enforcing compliance by third parties to
                  this License."

                  • (Score: 2) by TheRaven on Tuesday February 13 2018, @02:13PM (2 children)

                    by TheRaven (270) on Tuesday February 13 2018, @02:13PM (#637107) Journal

                    You would also know that the GPL doesn't prohibit adding extra terms, it requires that the recipient receives the same rights that you receive, which is not quite the same thing.

                    From section 6: "You may not impose any further restrictions on the recipients' exercise of the rights granted herein." The text of the grant disagrees. You may not impose any further restrictions... IE: No additional terms.

                    No, it says exactly what I said. You may not restrict their rights, but that's not what GrSecurity is doing. As the recipient of their patches, you are free to exercise the terms of the GPL. If you do so, then they will no longer sell you future versions of their code, but you retain all of the the rights granted to you by the GPL to the code that you have received.

                    " 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance."

                    Again, this does not contradict what GrSecurity was doing. They gave you the code under the GPL, you are free to exercise the rights under the GPL. They also have a contract with you to give you new versions of the code. If you distribute the code, then they will not give you future versions. This kind of thing isn't even unusual in contract law: here are a set of terms that you may exercise at any time, if you exercise the terms in contract A then we reserve the right to terminate contract B.

                    --
                    sudo mod me up
                    • (Score: 0) by Anonymous Coward on Tuesday February 13 2018, @02:59PM

                      by Anonymous Coward on Tuesday February 13 2018, @02:59PM (#637120)

                      Stick to code, kid.

                      GPLv2 forbids additional terms added to the agreement between the licencee and those to whom the licensee distributes the work (or derivative work). (distributees)
                      Terms can be memorialized or not. They can be verbal, be evinced by a course of business dealings, or be in a writing.
                      Here the additional terms added to the agreement were in a writing (they are memorialized).

                      You, a programmer, believe that the paper that the GPL v2 is printed on is "the agreement" (or the file in which the text of the GPL v2 resides). This shows your inadequacy in dealing with even slightly abstract topics.

                      Stick to code. Nothing personal.

                    • (Score: 0) by Anonymous Coward on Tuesday February 13 2018, @03:05PM

                      by Anonymous Coward on Tuesday February 13 2018, @03:05PM (#637123)

                      Incorrect. The GPLv2 forbids the imposition of additional restrictive terms. GRSecurity imposed an additional restrictive term. No you cannot be "cute" by placing the additional term in a separate writing, verbal agreement, or course of doing business: it is an additional term no-matter how you memorialize it (or even if you choose not to memorialize it).
                      And yes: IAAL.

                      "You may not restrict their rights, but that's not what GrSecurity is doing."
                      Yes it is. GrSecurity is assessing a penalty for the exercise of a explicitly permitted action. It is a restriction and a violation of the license grant.
                      Argue all you want. You are not a lawyer. I am. You are simply wrong.

  • (Score: 3, Insightful) by http on Saturday February 10 2018, @05:50PM (1 child)

    by http (1920) Subscriber Badge on Saturday February 10 2018, @05:50PM (#636072)

    tl;dr

    --
    I browse at -1 when I have mod points. It's unsettling.
    • (Score: 2) by requerdanos on Saturday February 10 2018, @06:19PM

      by requerdanos (5997) Subscriber Badge on Saturday February 10 2018, @06:19PM (#636083) Journal

      tl;dr

      This is such a common problem, not just here but in many places throughout the free software community, that there's actually a help command that, for usefulness, beats the heck out of man and GNU info... Called tldr.

      For example, info tar and man tar both return more than 1100 lines of minutia.

      tldr tar, by contrast, returns only a handful examples, two of which are "Create a gzipped archive" and "Extract a gzipped archive in the current directory." Sometimes less is more.

      You can install it (I did), or use tldr on the web [ostera.io].