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."
Significant dollar value
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.
Court documents indicate the hourly billing rate of those involved in Perens's defense ranged from $125 to $975.
If the award is granted by San Francisco magistrate judge Laurel Beeler, it could be ruinous for Spengler and his company. According to GovTribe, a site that tracks government contractors, Open Source Security has annual revenue of $350,000 and a single employee.
Spengler may also be personally liable for costs, if approved by the court, because both he and his company are listed as plaintiffs in the case.
Spengler sought $3m in damages from Perens. He is appealing Judge Beeler's decision to dismiss his claim, but the fee award does not have to wait for a decision by the appeals court.
At least one member of the Linux community predicted Spengler's lawsuit would not go well.
In a LWN.net post arising from The Register's initial coverage of the case last August, an individual posting under the name "rahvin" wrote, "Grsecurity is going to deeply regret filing this. Bruce has a very high caliber law firm on his side, this type of firm can bill a million dollars in a week. And when you win an anti-SLAPP motion you are practically guaranteed to win legal fees, particularly in California where the suit was filed. I'm not aware of a single anti-SLAPP motion that was won in Cali that didn't result in an award of legal fees."
Judge Beeler in a previous court filing indicated that she believed the anti-SLAPP statute would have to be considered. "[T]he court has difficulty seeing how the present claims can elude California’s anti-SLAPP statute," she said.
In an email to The Register, Rohit Chhabra, Open Source Security's legal counsel, said the hours spent and fees claimed "are ridiculous and outrageous from any reasonable standard. We will be addressing this in detail in our responsive filing and have full confidence that the Court will determine a fair and reasonable award." ®
Bruce Perens Seeks Mandatory Award of Legal Fees For His Defense in Open Source Security, Inc. and Bradley Spengler v. Bruce Perens
In August, Open Source Security, Inc. brought a lawsuit against me in federal court, seeking over $3 million, and later added Bradley Spengler as a plaintiff. Open Source Security and Mr. Spengler sued me because they disagreed with my blog posts and Slashdot comments which expressed my opinions that their policies regarding distribution of their Grsecurity product could violate the GPL and lead to liability for breach of contract and copyright infringement.
This lawsuit should never have been brought. My blog post and Slashdot comments are first amendment speech protected by the California anti-SLAPP law. While Open Source Security and Mr. Spengler were free to disagree with my opinions, they were not free to sue me to try to stop me from expressing them. The anti-SLAPP law requires recovery of attorneys’ fees and costs–precisely to deter actions like this one that chill the exercise of first amendment rights. Fee recovery also encourages private representation in anti-SLAPP cases so that defendants may obtain quality representation without being bankrupted. Thus, the law provides for successful defendants to recover fees and costs from plaintiffs who bring meritless suits.
The court has now ruled in my favor that Open Source Security and Mr. Spengler’s claims are not meritorious. Today, I am asking the court to award my legal fees and costs so far, which will go to O’Melveny, the law firm I retained.
The cost of my defense well exceeded half a Million dollars.
When I got sued, I called upon the best attorney I know in the Open Source world, Heather Meeker, who I have known for 20 years and worked with professionally. Heather is the author of Open (Source) for Business: A Practical Guide to Open Source Software Licensing — Second Edition and three other books. Heather formed a team including Melody Drummond Hansen, a Silicon Valley partner with experience in Open Source and defamation matters, Cara Gagliano, an associate focused on copyright and speech issues, and two bright first-year associates, Marissa Rhoades and Eric Ormsby .
I sought this high-quality team because the stakes were high. Open Source Security and Mr. Spengler sought at least $3 Million and also attacked my professional reputation and integrity. While the fees incurred in this case are significant, they are based on the standard rates charged for attorneys of similar experience and caliber. In my experience, this team is well worth it. Also, the amount of fees reflect Open Source Security’s and Mr. Spengler’s litigation tactics, which unnecessarily increased the time spent defending this case by forcing responses to the many filings and shifting theories they pursued.
Had Open Source Security and Mr. Spengler not filed their suit, they would not be facing this expense at all. For example, had they engaged in the spirit of reasoned debate rather than filing a lawsuit, the fees could have been avoided entirely. And had they not greatly complicated the suit, the fees would be much smaller. Plaintiffs now also are appealing the case, which will further increase my legal costs.
Fee awards under anti-SLAPP are mandatory and they are meant to deter unnecessary suits like this one–to protect everyone’s freedoms to engage in public debate without fear of being sued.
Generally, I would prefer not to talk about a lawsuit in progress. My desire to keep the Open Source community informed is my reason for making this statement. Unfortunately, I will not be able to make any further statements about the case for now.