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posted by Fnord666 on Sunday February 16 2020, @02:22PM   Printer-friendly
from the no-way-out dept.

The head of security firm Open Source Security, Brad Spengler, says he had little option but to file a lawsuit against open source advocate Bruce Perens, who alleged back in 2017 that security patches issued for the Linux kernel by OSS violated the licence under which the kernel is distributed.

The case ended last week with Perens coming out on the right side of things; after some back and forth, a court doubled down on its earlier decision that OSS must pay Perens' legal costs as awarded in June 2018.

The remainder of the article is an interview with Brad Spengler about the case and the issue.

iTWire contacted Spengler soon after the case ended, as he had promised to speak at length about the issue once all legal issues were done and dusted. Queries submitted by iTWire along with Spengler's answers in full are given below:

Court Orders Payment of $259,900.50 to Bruce Perens' Attorneys

Original Submission

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  • (Score: 1) by khallow on Monday February 17 2020, @12:25PM (3 children)

    by khallow (3766) Subscriber Badge on Monday February 17 2020, @12:25PM (#959127) Journal

    Perens, at the time he made the statements, had no possible way to determine with the facts available to him whether it was illegal or not. Until a court rules, the judgment is final, and the appeals exhausted, no one actually knows whether or not it is illegal. Unless Perens secretly has a time machine, he does not possess the facts necessary to rule on it. Even OSS's attorneys aren't saying it has been established. That is why they want a miniature trial to make that determination, and why they are arguing so hard to try and turn the defamation claim into other torts.

    And OSS is paying Perens's legal fees because it was an idiotic lawsuit.

    Just listen to the exchange between OSS and the judges at oral arguments []. You'll see that the entire rebuttal is over whether or not the statement is true. Combined with the grilling OSS got on their open, you can see the clear picture of what that would paint, all sorts of experts and people giving their opinion would open themselves up to retroactive liability for offering their opinions on any sort of dispute, let alone a legal interpretation one.

    Why should I listen to that exchange? Who made what arguments? What "grilling" was doing and what is the "clear picture"?

  • (Score: 0) by Anonymous Coward on Monday February 17 2020, @09:51PM (2 children)

    by Anonymous Coward on Monday February 17 2020, @09:51PM (#959306)

    I see what is going on, you think I think this suit has merit. I do not. You seem to think that Perens will win because it will turn out to be correct, and therefore is correct now. I think Perens will win because this is covered by the opinion privilege. No court has decided a similar set of facts related to the GPL. This means that legally the truth of falsity of the statement is currently undetermined. So the legal analysis is whether all the facts he based it on were true, which are basically the text of the GPL, that OSS accepted the GPL, and that OSS has a patch agreement that affects access to future source if users exercise rights under the GPL to distribute patches, and that no court has determined whether an extrinsic restriction of this kind counts with the GPL.

    Here is a baseball analogy. The very last pitch of the game the score is 0-0, bases loaded, 3 balls, 2 strikes, pitcher throws a pitch, the batter doesn't swing, and the catcher catches it. The universe is looped at that point for the duration of the pitch rewinds and replays repeatedly showing the same pitch. Except for for everyone but people in a particular town, and there is a house where some people are watching the game, One kid says, "Well we lost, that looks like a strike to me." Agreeing, a guy's wife tears up his betting slip calling him an idiot for losing their money. That guy goes to the kid and demands the kid pay him back his lost money because he thinks it is a ball and they won and therefore the kid cost him the money. They and everyone else can argue until the cows come home, they can go to the field and measure the pitch with surveying equipment, they can do whatever they want, but it doesn't matter. With the facts available that the time, it is impossible to tell.

    It all comes down to how the particular umpire and video review system sees the strike zone and whether any part of the ball enters that pentagonal prism. That pitch isn't "officially" a strike or a ball until the officials make the call. In our analogy, OSS is the guy with the torn up slip asking and is asking for the court to start the normal flow of time, have the call of strike or ball made officially, and then hold the kid liable for the lost money if it turns out the kid is wrong.

    The reason why this is important is because OSS basically wants to destroy the entire concept of voicing a legal opinion. Company A and Company B having a contract dispute? No one better say who they think is right, otherwise they'd be potentially liable to the other once the court rules. Saying publicly that you don't think a justification defense applies to a murder case? Better hope the jury agrees with you, otherwise you'd be liable if they don't. As those examples make clear, the entire idea of legal commentary is out the window or seriously curtailed under a system where that is allowed.

    • (Score: 1) by khallow on Monday February 17 2020, @10:10PM (1 child)

      by khallow (3766) Subscriber Badge on Monday February 17 2020, @10:10PM (#959318) Journal
      I said:

      And OSS is paying Perens's legal fees because it was an idiotic lawsuit.

      You said:

      I see what is going on, you think I think this suit has merit.

      • (Score: 1) by khallow on Monday February 17 2020, @10:53PM

        by khallow (3766) Subscriber Badge on Monday February 17 2020, @10:53PM (#959342) Journal
        Apologies. I read "you think" not "you think I think".