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." ®