Magistrate judge Laurel Beeler agreed to Perens' (right, below) motion on Thursday but denied his bid to invoke the anti-SLAPP (Strategic Lawsuit Against Public Participation) law in California.
This law deals with legal complaints that are directed at stopping public discussion and free speech. California put in place an anti-SLAPP law in 1992.
The group, Grsecurity which filed the lawsuit under its trading name Open Source Security, sells its patch to subscribers and took offence at Perens' characterisation of their efforts as presenting "a contributory infringement and breach of contract risk".
"It would fail a fair-use test (obviously, ask offline if you don’t understand). Because of its strongly derivative nature of the kernel, it must be under the GPL version 2 licence, or a license compatible with the GPL and with terms no more restrictive than the GPL. Earlier versions were distributed under GPL version 2."
The GPL Version 2 states that code for any software that issued under the licence has to be supplied in the event that it is redistributed. Patches under any other licence would not be able to be redistributed in this way.
In the lawsuit, Grsecurity argued that the subscription agreement gave it the right to terminate a client's subscription, thereby only limiting that person's access to future updates or versions (that is, patches that have not yet been developed, created, or released), if the patches are redistributed outside of the explicit obligations under the GPLv2 to the client’s customers.
In her judgement, Justice Beeler said: "Perens' blog posts are opinions and are not plausibly defamation.... The plaintiffs allege that Perens's blog posts were defamatory because they falsely state that the Grsecurity Access Agreement violates the General Public Licence.
"Perens counters, and the court agrees, that the blog posts are opinions about a disputed legal issue, are not false assertions of fact, and thus are not actionable libel.
"The court holds that Perens’ statements are opinions that are not actionable libel, dismisses the complaint with leave to amend, denies the anti-SLAPP motion without prejudice, and denies the motion for summary judgement."