O’Melveny and Electronic Frontier Foundation Score Landmark Win for Open Source Pioneer Bruce Perens

February 06, 2020


SILICON VALLEY—February 6, 2020—Working together, O’Melveny and the Electronic Frontier Foundation secured a landmark ruling in a high-profile lawsuit that has deep implications for freedom of speech and open source licensing law.

In today’s ruling, the US Court of Appeals for the Ninth Circuit affirmed an earlier dismissal of a defamation lawsuit against O’Melveny client Bruce Perens, co-founder of the Open Source Initiative, for his blog posts criticizing Open Source Security, Inc.’s (OSS) software redistribution policy, and an award of attorneys’ fees under California’s anti-SLAPP statute. Perens is a world-renowned technologist, one of the early contributors to the Linux kernel.

In his post, Perens expressed his opinion that the “grsecurity® agreement” developed by OSS violated the GPL license governing the Linux kernel. OSS, the creator of grsecurity—a set of patches for the Linux kernel—sued Perens in the Northern District of California, seeking millions in damages based on claims for defamation, false light, and tortious interference with prospective advantage.

O’Melveny represented Perens in the district court, where Magistrate Judge Laurel D. Beeler granted O’Melveny’s motion to dismiss the case, ruling that Perens’ comments were not actionable because Perens expressed opinions about unsettled legal issues. The Court also awarded Perens attorneys’ fees under anti-SLAPP law. California’s anti-SLAPP (strategic lawsuit against public participation) statute protects defendants against vexatious lawsuits brought to silence viewpoints on matters of public interest. 

The case garnered significant attention in the open source community and has been closely watched by technology press around the world.

The O’Melveny team included Silicon Valley-based Intellectual Property partners Heather Meeker and Melody Drummond Hansen, associate Eric Ormsby, and former associates Cara Gagliano and Marissa Rhoades. Meeker is an internationally known commentator on open source licensing law. Electronic Frontier Foundation Staff Attorney Jamie L. Williams served as lead counsel in the appeal with assistance from Cara Gagliano (now of EFF) and the O’Melveny team. O’Melveny associate Katie Gosewehr argued the fees portion of the appeal.

About O’Melveny

Drivers of innovation need a law firm built to keep up. Since the early days of the Internet, O’Melveny has helped clients stay ahead of the curve, and we haven’t slowed down since. The firm has a strong record as valued counselors, guiding numerous clients through the challenges of starting, financing, and growing a company to its full potential as well as representing clients in their most important technology matters. Lean more at: www.omm.com/momentum and omm.com.


Christopher Rieck
O’Melveny & Myers LLP
+1 212 326 2218