Appeals Court Win for Open Source Advocate Speaking Out on Licensing Restrictions

San Francisco – An Open Source advocate and blogger criticizing a company, Open Source Security Inc. (OSS), has successfully defended a defamation lawsuit after an appeals court found that the company’s accusations against the blogger were baseless.

The Electronic Frontier Foundation (EFF) represented Bruce Perens, a founder of the Open Source movement, in this appeal. The case started in 2017, when Perens posted a blog entry denouncing restraints that OSS placed on customers of its security patch software for the Linux Operating System. OSS sued Perens in response, despite the fact that Perens was merely exercising his First Amendment right to express his opinion about a matter of public concern to the worldwide Open Source community.

A lower court found that OSS’s lawsuit failed to plausibly state a claim for defamation and that Perens was entitled to fees under a California statute that protects defendants from SLAPPs, short for Strategic Lawsuits Against Public Participation. SLAPPs are malicious lawsuits that aim to silence critics by forcing victims to spend time and money to fight the lawsuit itself, draining their resources and chilling their right to free speech.

OSS appealed the decision to the United States Court of Appeals for the Ninth Circuit. Thursday, a panel of judges ruled that the lower court decision should stand.

“Bruce Perens merely expressed his opinion about a controversial issue of concern to many Open Source fans all over the world,” said EFF Staff Attorney Jamie Williams, who argued the case in front of the Ninth Circuit panel last month. “OSS is free to publicize its disagreement with our client, but as the Ninth Circuit’s decision confirms, it cannot sue him just because he said something the company didn’t like.”

For the full opinion in OSS v. Perens:
https://www.eff.org/document/memorandum-oss-v-perens