Open Source Security, Inc., the maker of the Grsecurity Linux kernel patches, suffered a setback last month when San Francisco magistrate judge Laurel Beeler granted a motion by defendant Bruce Perens to dismiss the company's defamation claim, with the proviso that the tossed legal challenge could be amended.
The code biz and its president Brad Spengler sued Perens over a blog post in June in which Perens said that using the firm's Grsecurity software could expose customers to a contributory infringement claim under the terms of the Linux kernel's GPLv2 license.
Open Source Security contends that statement has damaged its business.
In December, Open Source Security's legal counsel, Rohit Chhabra, told The Register that the judge's order wouldn't be the end of it.
True to his word, Chhabra is taking the case up the judicial ladder.
In a court filing on Thursday, he asked the judge to dismiss the case because the company does not intend to amend its claim.
A dismissal is necessary in order for the matter to be appealed, which Chhabra intends to do before the the Ninth Circuit Court of Appeals.
"We have specifically requested the Court to enter judgment of dismissal of Plaintiffs' complaint, pursuant to its December 21 Order, so that we can begin the appeal process," Chhabra told The Register in an email.
Chhabra said the further details about Open Source Security's argument will be available once the appeal is filed.
The Grsecurity development team has good reason to seek to overturn judge Beeler's order, which held that Perens' statements do not amount to libel because they are opinions that have not been proven true or false.
Her order also denied Perens' attempt to invoke California's anti-SLAPP statute, a law designed to deter attempts to censor public speech, in order to allow Open Source Security the chance to file a more legally supportable claim.
At the same time, the judge expressed doubt that the defamation claim as filed could avoid the state's anti-SLAPP rules.
Since the magistrate's denial of Perens's anti-SLAPP motion was "without prejudice," it may reintroduced. And according to Perens's legal team, it will be.
One of the mechanisms by which the anti-SLAPP statute aims to deter speech suppression is by allowing the accused to seek reimbursement for the often considerable cost of defending against an unwarranted claim.
"We plan to seek attorneys fees under the anti-SLAPP statute when and as appropriate," said Heather Meeker, a partner at O’Melveny & Myers LLP, which is representing Perens, in a phone interview with The Register ®.