no. 18-15189 in the united states court of appeals for...

No. 18-15189

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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPEN SOURCE SECURITY, INC. AND BRADLEY SPENGLER

Plaintiffs-Appellants,

v.

BRUCE PERENS

Defendant-Appellee.

On Appeal from the United States District Court

for the Northern District of California

No. 3:17-cv-04002-LB

Hon. Laurel Beeler

APPELLANTS’ EXCERPT OF RECORD

VOLUME 3 of 3 (ER 230 – ER 332)

Rohit Chhabra (CA-SBN. 278798)

CHHABRA LAW FIRM, PC

257 Castro Street Suite 104

Mountain View, CA 94041

650-564-7929

[email protected]

Attorney for Plaintiffs-Appellants

INDEX TO EXCERPTS OF RECORD

VOLUME 1

Docket No. Description ER Pages

58 Final Judgment ER 001-ER 002

53 Order Dismissing FAC With

Leave To Amend

ER 003 – ER 021

VOLUME 2


18 First Amended Complaint (FAC) ER 022 – ER 043

18-1 Exhibits to FAC

Exhibit 1

ER 044 – ER 046

Exhibit 2

ER 047 – ER 049

Exhibit 3

ER 050 - ER 056

Exhibit 4

ER 057 – ER 060

Exhibit 5

ER 061– ER 066

Exhibit 6

ER 067 – ER 071

Exhibit 7

ER 072 – ER 077

Exhibit 8

ER 078 – ER 081

Exhibit 9

ER 082 – ER 085

Exhibit 11

ER 086 – ER 087

Exhibit 12 ER 088 – ER 090


30-1 Declaration Of Melody Hansen Authenticating Exhibit A

ER 091

30-2

Exhibit A: Comments By Defendant Bruce Perens And The Public After First Publication

ER 092– ER 229

VOLUME 3


32-3 Declaration Of Defendant Bruce Perens ER 230 – ER 234

38

Plaintiff’s Opposition To Defendant’s Motion To Dismiss Pursuant To California’s Anti-SLAPP Motion

ER 235 – ER 263

38-1

Declaration Of Plaintiff Bradley Spengler In Support To Plaintiff’s Opposition (Re: Dkt. 38)

ER 264 – ER 267

40-2

Defendant’s Supplemental Declaration Exhibits To The Declaration:

ER 268 – ER 271

Exhibit 1 ER 272 – ER 273

Exhibit 2

ER 274 – ER 277

Exhibit 3

ER 278 – ER 279

45-1

Plaintiffs’ Supplemental Points And Authorities To Plaintiffs’ Opposition To Defendant’s Motion To Dismiss And Special Motion To Strike, Discussing Overstock.Com Inc. V. Gradient

ER 280 – ER 284

Analytics, Inc. 151 Cal. App. 4th 688 (2007)

54 Transcript Of The Hearing

ER 285 – ER 312

55

Plaintiffs’ Notice Of Intent Not

To File Amended Complaint

ER 313 – ER 314

57

Plaintiffs’ Ex Parte Application

Requesting Entry Of Final

Judgment Pursuant Notice (Re:

Dkt. 55)

ER 315 - ER 318

59 Notice Of Appeal

ER 319 – ER 322

Docket Report ER 323 – ER 332

CERTIFICATE OF SERVICE

I hereby certify that on June 14, 2018, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Date: June 14, 2018

Respectfully Submitted,


s/ Rohit Chhabra

Rohit Chhabra

Attorney for Appellants Open Source

Security, Inc. and Bradley Spengler

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ER 233


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accurately characterized as an "optional incentive," as OSS contends on the first page of its

brief. I believe thi s is inconsistent with the language of the Siable Patch Access agreement,

which states that redist ribution "will resu lt in termination of access" to future updates·

suggesting that 8 lIser would have future ncccss unless the user exercises its redistribution rights .

5 In my opinion. this clearly frames thc clause as a restriction on users' redistribution rights and a

6 penAlty ifuscrs exercise such rights. My interpretation that the Grsecurity agreement vio lates the

7 GPL also is further supported by the preamble of the GPLv2, which express ly says that the

8 license is mennl to forbid "ask [ingJ" users "to surrender the rights" the GPLv2 guarantees.

9

10 I declare lI nder penally of perj ury under the laws of the United Stares that the foregoing is

II true and correct, and Ihat thi s declaration was executed this] Ith day o f October 2017 in

12 ifCZJZ}INC ,Cal il()rnia.

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5 PERENS DEq. IS"

DEFENDANT'S OPP. TO ~ CASE NO. 3: 17-\~-0<\QQi!~1f1B

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accurately characterized as an "optional incentive/' as OSS contends on the first page of its

brief, I believe this is incons istent with the language of the Stable Patch Access agreement.

which statcs that redistribution "will resu lt in termination of access" to future updates-

suggesting that 0 lIscr would have future ncccss unless the user exercises its redistribution rights.

In my opinion. this clearly frames the cluuse as a restriction on users' redistribution rights and a

penAlty ifuscrs exercise such right s. My interpretation that the Grsecurity agreement vio lates the

GPL also is Illrther supported by the preamble oCthe GPLv2, which express ly says that the

license is mennt to forbid "ask[ing]" lI scrs "to surrender the rights" the GPLv2 guarantees.

I declare under penalty of perj ury under the laws of the United Slales that the foregoing is

true and correct, and that this dec laration was executed this] I th day of October 20 17 in

ifCZJZ)INC ,Calil(""ia.

5 PERENS DEq. \S(l,

DEFENDANT'S OPP. TO ~'\J) CASE NO. 3:11-\Y-04,QOH"

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3:17-CV-04002-LB

PLAINTIFF’S OPPOSITION TO DEFENDANT PERENS’ SECOND MOTION TO DISMISS AND SECOND SPECIAL MOTION

TO STRIKE

CHHABRA LAW FIRM, PC ROHIT CHHABRA (SBN 278798) Email: [email protected] 257 Castro Street Suite 104 Mountain View, CA 94041 Telephone: (650) 564-7929 Attorney for Plaintiffs Open Source Security Inc. and Bradley Spengler

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

OPEN SOURCE SECURITY INC. and BRADLEY SPENGLER Plaintiffs, v. BRUCE PERENS, and Does 1-50, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB Opposition to Defendant Bruce Perens’ Second Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) And Second Special Motion to Strike pursuant to CA. Code of Civ. P. § 425.16. and Bradley Spengler’s Decl. In Support to Opposition to Perens’ Second Motion to Dismiss and Second Special Motion to Strike Hearing Date: December 14, 2017 Time: 9:30 a.m. Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler

Case 3:17-cv-04002-LB Document 38 Filed 11/21/17 Page 1 of 29

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i 3:17-CV-04002-LB

PLAINTIFF’S OPPOSITION TO DEFENDANT PERENS’SECOND MOTION TO DISMISS AND SECOND SPECIAL MOTION

TO STRIKE

Table of Contents

I. INTRODUCTION .......................................................................................................................1

II. FACTS ..........................................................................................................................................4

III. ARGUMENTS .............................................................................................................................9

1. A Special Motion to Strike is inappropriate without giving Plaintiff the Opportunity to conduct

discovery ................................................................................................................................................... 9

2. Defendants’ defamatory statements are not protected conduct ............................................................ 11

3. Opposition to Motion to Dismiss under Fed. R. Civ. P. 12 (b) (6)/ Special Motion to Strike ............ 15

(i) Defamation per se and per Quod ............................................................................................ 15

(A). Plaintiff OSS Is NOT A Public Figure or a Limited Purpose Figure .................... 15

(B) Perens Made False Statements of Fact Which Were Not Privileged ...................... 16

(C) Even if the subject matter of Perens’ blog post were of public interest, Perens’ anti-

SLAPP motion cannot be granted .......................................................................................... 17

(ii) False Light ........................................................................................................................... 24

(iii) Intentional Interference with Prospective Economic Advantage ........................................ 24

IV. CONCLUSION ..........................................................................................................................25


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Cases

AMPEX Corp. v. Cargle, 128 Cal.App.4th 1569, 1576 (2005). ......................................................... - 16 -

Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005). ................................... - 11 -

Coastal Abstract Serv, Inc. v. First Am. Title Ins. Co., 173 F.3d 725 (9th Cir. 1999) ........................ - 17 -

Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974) ...................................................................... - 15 -

Global Telemedia Intern., Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267-68 (C.D. Cal. 2001) ............... - 16 -

Hailstone v. Martinez, 169 Cal. App. 4th 728, 736 (citing Weinberg supra, at pp. 1132-1133) ....... - 13 -

Jacobsen v. Katzer 535 F. 3d 1373 (2008) ................................................................................ - 5 -, - 19 -

Kahn v. Bower, 232 Cal.App.3d 1599, 1607, 284 Cal.Rptr. 244, 248 (1991) ................................... - 17 -

Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) ................................................. - 10 -

Milkovich v. Lorain Journal Co., 487 U. S. 1, 19 (1990). ....................................................... - 16 -, - 20 -

Moyer v. Amador Valley Joint Union High Sch. Dist., 225 Cal.App.3d 720, 723 (1990). ................ - 16 -

Overhill Farms, Inc. v. Lopez 190 Cal.App.4th 1248, 1267 (2010). .................................................. - 25 -

PAE Gov't Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 858 (9th Cir. 2007) .......................................... - 14 -

Rivero v. American Federation of State, County and Municipal Employees, 105 Cal.App.4th 913, 920

(2003). ............................................................................................................................................ - 12 -

Rivero, 105 Cal.App.4th at 924 .......................................................................................................... - 13 -

Rodriguez v. Panayiotou, 314 F.3d 979, 985 (9th Cir. 2002) ............................................................ - 16 -

Rodriguez v. Sony Comput. Entm't Am., LLC, 801 F.3d 1045 (2015) ................................................ - 14 -

Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973 ............................................................. - 10 -

Semiconductor Equipment And Materials International, Inc. V. The Peer Group, No. C 15-cv-00866-

YGR, at *14 (N.D. Cal. September 18, 2015) ................................................................................ - 10 -

Weinberg v. Feisel, 110 Cal. App 4th 1122, 1132 (2003) .................................................................. - 12 -


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Wilbanks v. Wolk, 121 Cal. App. 4th 883, 905 (2004). ........................................................... - 10 -, - 19 -

Statutes

Cal. Code Civ. Proc. § 425.16(e)(1)-(4). ............................................................................................. -13-

Rules

Fed. R. Civ. P. 12(b)(6) ...................................................................................................................... -15 -

Fed. R. Civ. P. 15 .......................................................................................................................-14 -, -15-

Treatises

Restatement Second of Torts, section 652E ....................................................................................... -19 -


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I. INTRODUCTION

Open source software is computer software that is made available with source code that can be

modified, used, or shared under certain defined terms and conditions. One such license is the GNU

General Public License version 2 (“GPL”) which defines redistribution rights to any software released

under the license. The Linux kernel code is released under the GPL. Plaintiff Open Source Security

Inc. (OSS) is a small private company located in Pennsylvania and develops software code that fixes

security vulnerabilities in the Linux kernel code (a concept commonly referred to as patching or

providing patches). OSS releases the patches, in source code form (that is, in the form of code written

in a programming language), under the GPL, to approximately 45 of its customers via a Stable Patch

Access Agreement (“Access Agreement”). In the Access Agreement, OSS’s 45 customers are

unequivocally informed that they have all the rights under the GPL for the current patches being

released. However, OSS further offers an, optional, incentive to not redistribute the patches outside the

boundaries defined in the Access Agreement if they wish to utilize its server resources and receive

continued access to future versions of the patches. If Plaintiffs’ customers wish to, they are free to

redistribute the patches in their possession – Plaintiffs can choose not to distribute future releases to

any customer since the GPL does not grant an inherent right to future releases.

The GPL in its preamble provides the licensee the “freedom to distribute free software (and

charge for it as a service if you wish to)... .” As stated in the preamble of the GPL, software released

under the license is considered “free software,” that is, freedom to distribute, and developers are free to

charge for such distribution as a service, if they wish to.

Plaintiffs, as licensees of the GPL, incorporate Linux kernel code into their patches. Thus, as a

licensee of the Linux kernel code, Plaintiffs are also granted the freedom to distribute their

modifications or additions to the Linux kernel code, under the GPL. Further, since freedom to


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distribute code equates to distributing (or not distributing) code without any consequences, it would be

antithetical to conclude the GPL can exclude Plaintiffs’ “freedom to distribute,” their own software as

they may have chosen to do so. Further, since each version or update is technically new software, that

is a separate patch having new code of unaccounted man-hours of work by Plaintiffs, and is released

independently under the GPL1, Plaintiffs are explicitly granted, under the GPL, the freedom to

distribute each version, at their discretion. Defendant Bruce Perens (“Defendant” or “Perens” ) is a

famous and well-regarded, personality in the open source community. Defendant is also respected as

an expert in open source matters and has published 24 books on the subject. Reasonably, the open

source community, including Plaintiffs, have no reason to doubt Defendant’s knowledge or expertise

in the subject matter.

This action began due to a blog post that was initially published on June 28, 2017, and further

updated on July 10. The underlying premise of both publications was that the GPL “explicitly

prohibits the addition of terms such as [those provided by the Access Agreement].” Based on such a

premise, Defendant stated that Plaintiffs’ redistribution clause of the Access Agreement was, as a

matter of fact, violating the GPL, and thus the patches were a product of unlicensed work. Based on

such an assertion, Defendant expressed his strong opinion stating that Plaintiff’s customers were

subjecting themselves to potential legal liability under copyright and/or contract law from the creators

of the Linux kernel. However, Defendant, as an expert in open source matters, being well versed with

the law, knew or reasonably should have known that the Access Agreement, in part, only enforces

Plaintiff’s freedom to distribute free software as they wish to – a right explicitly granted to Plaintiffs

1 The GPL cannot and does not force Plaintiffs to provide updated patches and is valid for the software released under it. Each time new code is written or new/ updated features are provided, it becomes new version software, and is released under a new GPL license. Per the GPL, any person can modify the patches to provide new/updated features and release or sell it as their own.


ER 240

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by the GPL (as a licensee of the Linux kernel code). Defendant knew or should have known, that the

Access Agreement does not prevent or restrict a user from exercising their right of redistributing the

patches, but only defines conditions upon which Plaintiffs are willing to offer their customers access to

their server and Internet resources, and exercise their freedom to distribute future software – a

condition beyond the scope of the GPL of the current version of the patches released to Plaintiffs’

customers. Further, based on Perens’ own admission publishing a blog post was “more effective than

writing to [Plaintiff],” despite the fact that he had not seen the Access Agreement prior to publishing

his statements – demonstrating a lack of interest in the truth.2

Indeed, Perens admitted that Plaintiffs’ Access Agreement was not violating the GPL. On July

9, 2017, at or about 5:09 p.m., prior to updating the blog post, Perens, responding to a commenter on

slashdot.org, admitted that “[t]he problem isn't with the text [of the Access Agreement]. It's with what

else they have told their customers. It doesn't even have to be in writing. I have witnesses.” Despite

admitting that the Access Agreement was not in violation of the GPL, on July 10, 2017, at or about

8:15 a.m., Perens updated the blog post and explicitly published that the Access Agreement violated

the GPL. Perens now contends his statements were mere “opinions” and that no court has ever ruled

on his assertions, so there can be no liability under a claim of action under defamation. However, such

contentions are erroneous. First, Perens’ own position as a crusader and a subject matter expert

regarding legality of open source matters makes it reasonable that a layperson would understand such

assertions as being based on a fact, since they were made by someone with specialized knowledge in

the industry. Second, clearly Perens wanted Plaintiffs’ customers to rely on his assertions as reflecting

the truth. Third, a statement of opinion may be actionable if it implies the allegation of undisclosed

2 Perens has stated under penalty of perjury that the he reviewed the Access Agreement on July 9, 2017, 11 days after the original publication of the blog post.


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defamatory facts as the basis for the opinion. Fourth, the facts implied by Perens, that Plaintiffs are in

violation of the GPL, as a whole are provably false based on known decades old common law

principles of contract law and copyright law, but in the very least based on Perens’ own admission.

Therefore, by using false facts and abusing his reputation in the community, Perens published

libelous statements about Plaintiffs.

II. FACTS3

The GPL is an open source licensing agreement which limits certain rights of the author of the

software. See, generally, First Amended Complaint (“FAC”), Ex. 3. The GPL, in part provides: When

we speak of free software, we are referring to freedom, not price. Our General Public Licenses are

designed to make sure that you have the freedom to distribute copies of free software (and charge

for this service if you wish), ... .” See FAC ¶19 (emphasis added). Further, section 6 of the GPL, in

part states, no one may impose any further restrictions on the recipients' exercise of the rights granted

herein. See FAC ¶ 14. Specifically, the GPL states “[t]his License applies to any program or other

work which contains a notice placed by the copyright holder saying it may be distributed under the

terms of this General Public License.” See FAC Ex. 3, Section 0. The GPL does not, implicitly or

explicitly, extend to future versions that may or may not be created or released by the software

developer. See FAC, Ex. 3.

Bruce Perens is a well-known personality in the open source community. See FAC ¶ 33. He is

known for being “one of the founders of the Open Source movement in software, and was the person

to announce ‘Open Source’ to the world”. Id. He created the Open Source Definition, the set of legal

requirements for Open Source licensing which still stands today.” Id. Perens has represented himself

as an expert for the plaintiff in prominent open source cases like Jacobsen v. Katzer 535 F. 3d 1373

3 Plaintiff request the Court to take Judicial Notice to these facts as it deems appropriate.


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(2008). See FAC ¶ 34. He has also worked as a case strategy consultant for Google’s outside counsel in

the district court case of Oracle v. Google. See FAC ¶ 35. Although not an attorney, Perens has taught

Continuing Legal Education classes to attorneys in many states and was a keynote speaker at a Silicon

Valley event attracting over 250 attorneys.” See FAC ¶ ¶ 36 -37. Perens has also published more than

24 books on open source software, all but one have been profitable and “several still sell well more

than a decade after publication.” See FAC ¶ 38. Perens is also very well versed with the law. During

his discussions with a commenter on slashdot.org, Perens has stated that he has “won against folks who

were admitted to the supreme court ... .” See FAC ¶ 40.

Plaintiff Open Source Security (“OSS”) is a small private corporation located in the State of

Pennsylvania. See FAC ¶ 2. Plaintiff Bradley Spengler (“Spengler”) is the CEO and lone share-holder

of OSS. See FAC ¶ 3; See Declaration of Bradley Spengler (“Spengler Decl.”) ¶1. Plaintiff offers

software code, in the form of source code (“Patches”), for the Linux kernel providing security fixes,

under the trade name, Grsecurity® to 45 of its customers, at the time the blog posts were published.

See FAC ¶ 12. Grsecurity® is released under the GPL. See FAC ¶ 13. Plaintiff does not advertise its

services to anyone other than having Internet presence via its website, http://www.grsecurity.net. See

Spengler Decl. ¶ 3. Spengler has not undertaken any voluntary affirmative action through which he

has attempted to seek to influence the resolution of any public issue related to the GPL. See Spengler

Decl. ¶4.

At or about September 2015, Plaintiff established an Access Agreement with its customers who

are primarily private businesses. See Spengler Decl. ¶5. As of June 28, 2017, Plaintiff only had

approximately 45 customers receiving its patches. See Spengler Decl. ¶6. Further, OSS provides its

services to a niche segment within the open source community. See Spengler Decl. ¶11.


ER 243

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The Access Agreement states, in part that the customer has all the rights and obligations granted by

GPL, and that OSS reserves the right to terminate access to future updates if the software is distributed

outside of the explicit obligations under the GPL. See FAC, Ex. 4, (emphasis in original).

The Access Agreement, by itself only controls access to the servers and resources under the

dominion and control of Plaintiffs and distributes the Patches, as a service. See FAC ¶21. The Access

Agreement does not govern any right granted to Plaintiff’s customers under the GPL; customers are

free to distribute the Patches if they desire to do so. See FAC ¶22. If a customer does not require

Plaintiffs’ service, they are free to modify, host, copy, redistribute, and even charge for their services

using the Patches in their possession, since such a right is granted within the GPL. See Spengler Decl.¶

7. Plaintiff does not engage in a discriminatory practice under any State or Federal law or regulation.

See Spengler Decl. 8. The Access Agreement further states, in part, “... we reserve the right to revoke

access to the stable patches and changelogs at any time for any reason.” See FAC Ex. 4.

On June 28, 2017, Perens published a blog post on his website, www.perens.com, based on his

understanding from several sources, OSS was implicitly or explicitly in violation of the GPL, and by

continuing to use its Grsecurity product, OSS’ customers were subjecting themselves to liability. See

FAC ¶42. On July 9, 2017, at or about 2:10 p.m., Perens’ blog post was partially reproduced, and

linked, on slashdot.org, a website well known by programmers and software developers in the Open

Source community, having an Internet traffic of approximately 3.2 million unique visitors each month.

See FAC ¶¶ 43, 66, and 67. On July 9, 2017, at or about 4:58 p.m., an anonymous reader commented

on the slashdot.org posting:

I've had a look over their agreement here [link to the subscription agreement on grsecurity.net], and there is nothing to prevent

redistribution of a patch under the terms and conditions of the

GPLv2. It states that if it a patch is distributed outside of the terms of the GPLv2, then access to further patches in the future (not the patch provided) will be denied ... .


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See FAC ¶ 44 (emphasis added).

On July 9, 2017, at or about 5:09 pm, Perens responded to the above comment, stating:

The problem isn't with the text there. It's with what else they have

told their customers. It doesn't even have to be in writing. I have

witnesses. ... . See FAC ¶ 45 (emphasis and italics added).

However, on July 10, 2017, at or about 8:11 a.m., Perens updated the blog post, and explicitly

asserting that OSS was in violation of the GPL and by continuing to use its Grsecurity product, OSS’

customers were subjecting themselves to liability; Perens however removed all references that

suggested he had witnesses . See FAC ¶¶ 42 and 47.

Collectively, in both the original blog post, its revision, and comments on slashdot.org,

Defendant made the following defamatory statements. See FAC ¶ 49. Perens, being aware that

“publicity [is] a tool” available to him, did not bother discussing his disagreement with Plaintiffs about

their business practices. See FAC ¶¶68 and 72. Exploiting his position as an expert in open source

matters, Perens published statements about Plaintiffs’ business practices and attempted to dissuade

Plaintiffs’ customers from doing business with Plaintiffs, while having absolutely no valid proof or

case law that supported his contention. See FAC ¶¶ 33 – 40, 53 – 56, and Perens Decl. ¶¶ 5 – 10 (ECF

No. 32-3). See also Defendant’s Second Anti-SLAPP Motion & Motion to Dismiss FAC at p. 16, ll.

13-15, and fn. 8 (ECF No. 30). Clearly, Perens wanted Plaintiffs’ customers to rely on his assertions

as reflecting the truth. See also Perens Decl. (ECF No. 32-3). Further, laypersons understood such

assertions as being based on a fact, since they were made by someone with specialized knowledge in

the industry. Generally see, Defendant’s Second Anti-SLAPP Motion & Motion to Dismiss FAC, Ex.

A (ECF No. 30-2). Perens was at least negligent and did not attempt to ascertain the truthfulness and

veracity of the statements identified above, or knew the statements were false or had serious doubts

about the truthfulness of such statements, or was just not interested in the truth. See e.g., FAC ¶¶ 57,


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59, 60, 62, 63, 68,72, 81, 82, 99, and 117; Also see FAC ¶¶ 44-45, 48 and 49 (Perens admitting his

statements were false, and despite that updating the blog post and publishing that the Access

Agreement was violating the GPL). Furthermore, Perens published the original blog post without

contacting Plaintiffs or even having access to the Access Agreement. See FAC ¶¶ 68, 72, Perens Decl.

¶¶ 10, 12 (ECF No. 32-3). Further, Defendants do not have any “reliable sources” or “witnesses” that

can provide any evidence or testimonial facts that can support a showing of a violation of the GPLv2

by Plaintiffs. See FAC ¶¶ 46, 49, 59, Perens Decl. ¶¶ 6 – 7 (ECF No. 32-3). To the contrary, Plaintiffs

have never conveyed any verbal statements regarding its Access Agreement or its redistribution

policies to anyone. See Spengler Decl. ¶ 9.

Spengler is the sole-shareholder of OSS, Spengler’s name is often associated when OSS is

discussed in the open source community. See FAC, Ex. 9 and 11 (title/ subject stating Spengler along

with OSS). Defendant discussed the contents of the Postings with readers of Slashdot, attempting to

convince them that the statements in the Postings were an accurate analysis of the law and publicized

his postings. See Defendant’s Second Anti-SLAPP Motion & Motion to Dismiss FAC, Ex. A (ECF

No. 30-2); Also see FAC ¶ 68. Plaintiff Spengler, by association, became a subject of discussion in

numerous posts on Slashdot. See FAC ¶¶ 94-96. The false light created was highly offensive to a

reasonable person in Spengler’s position since the blog posts attempted to destroy his reputation and

the reputation of his services, and sought to cause Spengler to lose his ability to continue his business.

See FAC ¶ 97.

The statements in the blog posts have caused OSS extraordinary damages, including loss of

potential customers and loss of good will. See FAC ¶ 73. As a direct or proximate cause of the

publications, over 35 potential business customers have not signed the Access Agreement. See FAC

¶74. Further, at least four existing Customers have terminated business relations with Plaintiffs. See


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FAC ¶75. Further, prior to the publication of the blog posts, OSS was in the process of hiring a full-

time software engineer to further enhance the security features in the Grsecurity® product. The

employee was expected to start working on the Grsecurity® product in September 2017. However, as

a direct or proximate cause of the Postings, OSS had to implement a hiring freeze and divert its

resources towards legal fees and unexpected costs of litigation. The hiring freeze has harmed OSS at a

time when it was geared towards expanding its business operation. See FAC ¶ 76. The publication of

the blog posts also caused OSS to incur the extraneous expense to hire an independent contractor to

monitor and counteract the negative publicity resulting due to the publications which has further

caused an expense of $6,300. See FAC ¶ 77. As a proximate result of the Postings, Plaintiffs have

suffered loss of business and professional reputation. See FAC ¶¶ 84, 85, 87, 97, 102, 103, 105, and

111. Due to the blog posts OSS has suffered general and special damages, including, without

limitation, lost revenue and profits as a function of damage to Plaintiff’s business reputation;

diminution in the pecuniary value of Plaintiff’s goodwill, administrative costs in connection with

Plaintiff’s efforts to monitor and counteract the negative publicity, and other pecuniary harm. See FAC

¶¶ 73 – 77 and 85 – 87.

Further, Spengler was also mentally distressed by the blog posts and comments and the

negative publicity it generated towards his ability to do business and loss of reputation in the

community that he had to seek psychological help for the emotional distress. See FAC ¶ 100; Also see

Spengler Decl. ¶ 10.

III. ARGUMENT

1. A special motion to strike pursuant to California’s anti-SLAPP statute, alleging Plaintiff’s lack

of demonstrative evidence is inappropriate.


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A court in the Northern District of California has stated that, “ ... the Ninth Circuit requires a

party opposing an anti-SLAPP motion be afforded the same right of discovery as a party opposing

summary judgment under Rules 56(f) and (g), [citing Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832,

846 (9th Cir. 2001)] (reversing district court's granting of certain defendants' anti-SLAPP motions and

remanding to the district court to, in part, permit discovery where information "in the defendants'

exclusive control" may have been "highly probative to [plaintiff's] burden"); [citing Rogers v. Home

Shopping Network, Inc., 57 F.Supp.2d 973, 982] ("Because the discovery-limiting aspects of §

425.16(f) and (g) collide with the discovery allowing aspects of Rule 56, these aspects of subsections

(f) and (g) cannot apply in federal court"). Semiconductor Equipment And Materials International, Inc.

V. The Peer Group, No. C 15-cv-00866-YGR, at *14 (N.D. Cal. September 18, 2015).

Furthermore, California courts have also stated, “[s]tatutes such as section 425.16, therefore,

are construed to require the lower court to consider the challenged plaintiff's affidavits for the purpose

of determining whether sufficient evidence has been presented to demonstrate a prima facie case and,

"`[i]n making this judgment, the trial court's consideration of the defendant's opposing affidavits does

not permit a weighing of them against plaintiff's supporting evidence, but only a determination that

they do not, as a matter of law, defeat that evidence.' [Citation.] ‘A motion to strike under section

425.16 is not a substitute for a motion for a demurrer or summary judgment’ [Citation]. In resisting

such a motion, the plaintiff need not produce evidence that he or she can recover on every possible

point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should

deny the special motion to strike and allow the case to go forward.” Wilbanks v. Wolk, 121 Cal. App.

4th 883, 905 (2004). However, Perens, in arguments for his special motion to strike pursuant to

California’s anti-SLAPP statute, is attempting to hold Plaintiffs to a higher standard and expects

Plaintiff to conclusively prove that Perens is liable for the alleged causes of action.


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Plaintiffs submit a viable suit can be demonstrated as further discussed herein, including by the

allegations in the First Amended Complaint, and a prima facie case has been further established based

on affidavits. See FAC Ex. 12 and the attached Spengler Decl., Ex. 1. Thus, Perens’ special motion to

strike should be dismissed.4

2. Defendants’ defamatory statements are not protected conduct and are thus not subject to a

special motion to strike under the California anti-SLAPP statute.

The California anti-SLAPP statute allows certain parties limited immunity from suit for

statements made in pursuit of their First Amendment rights. Neither the immunity nor its application

is absolute and even its fairly liberal reach does not extend to Perens’ defamatory and false statements

that the Plaintiffs’ Grsecurity product violated the GPL and that Plaintiffs’ customers were thus subject

liability. The statute protects only:

1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; 3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or 4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Cal. Code Civ. Proc. § 425.16(e)(1)-(4).

Perens holds the burden of proof to show that his defamatory statements were protected. Bosley

Medical Institute, Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005). Perens cannot meet his burden

4 However, if the Court determines that the Plaintiffs, for any claim, are unable to prove an allegation due to lack of evidence, as contended by Perens, the Court should deem this anti-SLAPP motion as prematurely filed, and sua sponte grant Plaintiff a motion to continue Defendant’s motion to dismiss and special motion to strike pursuant to California’s anti-SLAPP statute, for those respective claims.


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because his false assertions of facts are not constitutionally protected free speech, as a matter of law.

There is no credible evidence that Perens’ defamatory statements were made before legislative,

executive or judicial bodies. Further, his statements did not involve any issue of public interest, but

were limited to Plaintiffs existing customers who were 45 private businesses at the time of the blog

post(s) were published. Further Perens’ statements were not made in anticipation of litigation.

Perens’ Defamatory Statements Are Not An Issue Of Public Interest

Perens claims that simply because his blog post was linked to slashdot.org, and generated over

470 comments, the response by the public is conclusive that the matter was of public interest. It is

undeniable that Perens is well-known in the open source community. His opinions are also well

respected in the community. Indeed, when someone coins the term open source, creates the open

source definition, writes 24 books on the subject matter, represents himself as an expert on the subject

matter during appeal, and teaches continuing legal education to 250+ attorneys, such a person will be

well respected and his views taken very seriously. Perens’ blog post was specifically addressed to

Plaintiffs’ customers – which numbered 45 at the time of the publication of the defamatory statements.

Not all disputes are a matter of public interest for purposes of a special motion to strike. In

order to be of ―public interest, an issue must be one that ―impacts a broad segment of society and/or

that affects a community in a manner similar to that of a governmental entity. Rivero v. American

Federation of State, County and Municipal Employees, 105 Cal.App.4th 913, 920 (2003).

Perens cannot turn his personal dissatisfaction with Plaintiffs’ business practices or the Access

Agreement into a public issue merely by abusing his fame and reputation and communicating it to a

large number of people. Weinberg v. Feisel, 110 Cal. App 4th 1122, 1132 (2003). “[P]ublic interest is

not mere curiosity. Further, the matter should be something of concern to a substantial number of

people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not


ER 250

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a matter of public interest” ... Moreover, the focus of the speaker's conduct should be the public

interest, not a private controversy. Finally, a defendant charged with defamation cannot, through his or

her own conduct, create a defense by making the claimant a public figure. Otherwise private

information is not turned into a matter of public interest simply by its communication to a large

number of people. Hailstone v. Martinez, 169 Cal. App. 4th 728, 736 (citing Weinberg supra, at pp.

1132-1133).

The instant case is most like Rivero, supra. In that case, a janitorial supervisor at a public

university sued a union for defamation after he was accused of bribery, nepotism, theft and extortion.

The Union’s anti-SLAPP motion alleged that the issue was one of public concern because it involved

unlawful workplace activities which concerned the public and public policy, especially at a publicly

financed institution. The court rejected this argument, finding that the dispute between the supervisor

and the union simply did not rise to a matter of public interest. Rivero, 105 Cal.App.4th at 924.

In the instant matter, the title of Perens’ blog post was, “Warning: Grsecurity: Potential

contributory infringement and breach of contract risk for customers.” In both the original blog post and

its update revision, Perens began by communicating directly to his audience – the 45 customers of

Plaintiffs. He stated, “It’s my strong opinion that your company should avoid the Grsecurity product

sold at grsecurity.net because it presents a contributory infringement and breach of contract risk.”

In both the original blog post and its updated version, Perens continued by explaining

Plaintiffs’ business practice and then made conclusory statements that such practices violated the GPL,

without any proof. Perens then continued discussing how Plaintiffs’ clients were subjecting themselves

to liability. It is also undisputed Perens wanted the target audience (that is, Plaintiff’s customers) to

believe his statements were true. Given that Plaintiff is well known in the open source community and


ER 251

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is known to be a subject matter expert in the industry, his statements were bound to attract public

fascination and curiosity.

However, Perens attempts to portray his blog posts as a matter of public concern, when they

were:

(i) not addressed to the open source community at large, but only to a niche segment within the

open source community that considers using open source security based products not provided by the

Linux kernel code developers;

(ii) were specifically addressed to Plaintiffs’ approximately 45 customers and how they were

subjecting themselves to liability by using the Grsecurity product; and

(iii) not related to an analysis of the current practices in the for-profit open source industry,

when such practices have been going on for approximately two decades. See FAC ¶¶ 23 – 27.

Perens now resorts to conjecture and attempts to hold Plaintiffs against their genuine desire to

clarify a previously ambiguously written statement that the blog posts were seen and read by hundreds,

if not thousands of consumers and prospective clients, professional colleagues and business partners.

See Original Complaint ¶ 36 Cf. FAC ¶69. However, this should be deemed as a non-issue since as

Perens correctly notices amendments pursuant to Fed. R. Civ. P. 15 are to be construed broadly.

Further, Plaintiffs early on, in good faith, corrected a previous allegation that had an ambiguous

context, and did not attempt to thwart the statutory language by artfully pleading allegations that were

fatal to a claim.5 Moreover, even if such ambiguous statement, amended in good faith, is held to be

inconsistent with the original pleading, there is no rule to prevent such an action by Plaintiff, especially

5 Plaintiffs note the cases cited by Perens do not apply to the instant matter, since in the instant matter Plaintiffs only clarify a previously submitted ambiguous statement, and not a contradictory statement, as referred to within the case cited by Perens. Specifically, in Rodriguez v. Sony Comput. Entm't Am., LLC, 801 F.3d 1045 (2015), Rodriguez had amended the complaint numerous times, later in the proceeding, with allegations that contradicted the previous stated allegation. Id. at 1054.


ER 252

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since the ambiguity was clarified pursuant to Fed. R. Civ. P. 15(a)(1), and that too, at a very early stage

in the proceeding. See PAE Gov't Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 858 (9th Cir. 2007)

(determining that even if the allegations in the first amended complaint were unfounded because they

contradicted (in the district court's view) earlier allegations made in the original complaint,

adjudication of claims on the merits was not permitted by Federal Rules of Civil Procedure at such an

early stage in the proceedings).

Therefore, since the subject matter of the blog post was to inform Plaintiffs’ 45 customers of

their potential liability if they continued to use the Grsecurity® product, Perens abused his fame and

invoked the curiosity of the public, none of them who were directly affected by Plaintiffs’ business

practices. Thus, these statements are not protected by sections 425.16(e)(3) and (4).

3. Opposition to Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)/ Special motion under

California’s anti-SLAPP statute

Even if Perens’ statements are considered as a matter of public interest, Plaintiffs respectfully

submit that they can sufficiently demonstrate a probability of prevailing on the merits of the claims.

(i). Defamation per se and Per Quod6

(A) Plaintiff OSS Is Not A Public Figure Or A Limited Purpose Public Figure

Public figures are entities which, ―by reason of the notoriety of their achievements or the

vigor and success with which they seek the public’s attention, are properly classed as public figures.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974). Plaintiff OSS is a small private corporation

with one employee and currently three7 part-time independent contractors. Spengler Decl. ¶ 2. Prior to

the publication of the blog post(s), OSS has never sought the public attention and did not even

6 Plaintiff OSS severally brings the action of defamation per se and defamation per quod. See FAC ¶¶ 78 – 90. 7 At the initiation of this action, OSS employed four part-time independent contractors. See Spengler Decl. ¶ 2, at ECF No. 20-1.


ER 253

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advertise their services or their product, except for having Internet presence. Spengler Decl. ¶3.

Plaintiffs are not limited purpose public figures either. A limited public figure is one who injects

himself into a particular public controversy. Gertz, 418 U.S. at 351. In determining if a business is a

limited purpose public figure the Fourth District Court of Appeal provided the necessary factors to

consider: (1) if the company is publicly traded; (2) the number of investors and (3) whether the

company has promoted or injected itself into the controversy by means of numerous press releases.

AMPEX Corp. v. Cargle, 128 Cal.App.4th 1569, 1576 (2005). In this case, none of the AMPEX factors

are met. (i) OSS is a small private incorporation. (ii) OSS has no investors, and (iii) OSS has not

promoted or injected itself into the controversy, at issue, by means of any press release. In fact, even

after Perens’ defamatory publication, Spengler did not make any comments to the public about Perens’

post, or attempted to defend OSS from Perens’ allegations. Thus, OSS is not a limited public figure.

(B) Perens Made False Statements Of Fact Which Were Not Privileged And Which Have A

Natural Tendency To Cause Damages

Perens’ false statements of “opinion” are actionable because they are facts rather than opinions

and admissible evidence shows they are demonstrably false.

Generally, statements of fact are actionable. Global Telemedia Intern., Inc. v. Doe 1, 132

F.Supp.2d 1261, 1267-68 (C.D. Cal. 2001). A defendant cannot hide behind a claim of ―opinion when

the statement in question – however phrased – states a provable (or disprovable) fact. Rodriguez v.

Panayiotou, 314 F.3d 979, 985 (9th Cir. 2002); Milkovich v. Lorain Journal Co., 487 U. S. 1, 19

(1990). The dispositive question is whether a reasonable fact finder could conclude that the relevant

statements imply a provably false factual assertion. Milkovich, 497 U.S. at 19. The United States

Supreme Court affirmed this rule in Milkovich when it stated, “[e]ven if the speaker states the facts

upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment

of them is erroneous, the statement may still imply a false statement of fact.” Id. at 19-20. Thus, “a


ER 254

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false assertion of fact [can] be libelous even though couched in terms of opinion.” Moyer v. Amador

Valley Joint Union High Sch. Dist., 225 Cal.App.3d 720, 723 (1990).

Firstly, Perens has admitted that the Access Agreement did not violate the GPL.8 FAC ¶ 44-45.

Therefore, his statements are demonstrably, by admission, false. Thus, Perens cannot avoid liability by

simply claiming that his defamatory statements were “opinions” of a layperson. OSS includes all

arguments presented in Plaintiff’s partial motion for summary judgment (ECF Nos. 24 and 37), by

reference. If the Court were to grant Plaintiffs’ motion, no further analysis needs to be performed.

(C) Even if the subject matter of Perens’ blog post were of public interest, Perens’ anti-SLAPP

motion cannot be granted.

Perens primarily relies on Coastal Abstract Serv, Inc. v. First Am. Title Ins. Co., 173 F.3d 725

(9th Cir. 1999). Perens contends that since no court has ruled on the compliance of any agreement

similar to the Access Agreement, thus Perens’ statements should be deemed as mere opinions.

However, the facts of Coastal Abstract, can be distinguished from the present matter. There, plaintiff

sued defendant, a lay person, for defamation, among others, since defendant had claimed that plaintiff

did not have a business license in California, as required by statute. Plaintiff did not have a business

license and the Ninth circuit noted, that “an opinion that does not convey a false factual implication is

not defamatory under California law.” (citing Kahn v. Bower, 232 Cal.App.3d 1599, 1607, 284

Cal.Rptr. 244, 248 (1991)).

Based on the above, the Court stated:

Thus the statement that Coastal was operating illegally without a California license might present a triable claim if in fact Coastal had a California license.

There is no dispute, however, that Coastal had no California license (and was not affiliated with a California licensee) at the time First American made the statement. The only claim of falsity concerns the statement or suggestion that California's statute applied to the activities of Coastal, which was (and apparently still is) a matter of opinion. As a matter of law, the statement that Coastal was

8 This Court is requested to take Judicial Notice of FAC ¶¶ 44-45.


ER 255

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operating without the necessary license in California did not constitute defamation.

Coastal Abstract, supra, at 733 (emphasis added).

Here, Perens has alleged that OSS is in violation of the GPL. This is disputed (unlike Coastal

where the original premise was based on a truth –Coastal did not have a license in California). Thus,

as a matter of law, the statement that OSS is in violation of the GPL, constitutes defamation, since,

unlike Coastal, there is no undisputed truth that can be used as a valid defense. Perens further

misinterprets Coastal as if defamation requires a conclusive law to prove or disprove every statement

of fact. To the contrary, the Coastal court relied on an undisputed statement of fact, and the court

decided not to interpret a statutory requirement since “the only claim of falsity concern[ed] the

statement or suggestion that California's statute applied to the activities of Coastal.” Id.

Perens also relies on Coastal’s analysis of the Lanham Act to attempt to evade liability under

defamation. The Coastal Court concluded that “[s]tatements of opinion are not generally actionable

under the Lanham Act.” Id. at 731. There the court relied on “[a]bsent a clear and unambiguous ruling

from a court or agency of competent jurisdiction, statements by laypersons that purport to interpret

the meaning of a statute or regulation are opinion statements, and not statements of fact.” Id. at 731;

citing Dial A Car, Inc. v. Transportation, Inc., 82 F.3d 484, 488-89 (D.C.Cir. 1996); Sandoz

Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 230-32 (3d Cir.1990) (emphasis

added.) The subject matter of dispute in both Dial A Car and Sandoz was related to the Lanham Act,

and the Coastal Court cited these courts to address an issue related to the Lanham Act itself, not the

defamation aspect of the case. However, even if the Coastal court’s analysis, as applied to the Lanham

Act, were to be applied in a defamation matter, Perens cannot simply evade liability by now claiming

that his statements were that of a layperson. Here, it is undeniable that Perens has represented himself,

and is by large known to the open source community, as an expert in disputes over the legality of open


ER 256

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source matters, as he did in Jacobsen v. Katzer, supra. Further, Perens has written at least 23

successful books in open-source matters, taught continuing legal education to over 250 attorneys, and

is a professional who instructs engineers and produces clarity for attorneys in how to comply with legal

requirements related to computer software. Perens has further implied that his understanding of the law

is better than seasoned attorneys admitted to the US Supreme Court. Clearly, Perens cannot be held to

the same standard of a layperson and his “opinions” cannot be simply considered as that of a lay

person. Therefore, the Coastal test cannot apply for this reason as well.

California courts agree with Plaintiffs’ analysis in the context of defamatory statements

published by a person having specialized knowledge in an industry. The facts of the instant matter are

very similar to that of Wilbanks v. Wolk, 121 Cal. App. 4th 883, supra. In Wilbanks, Gloria Wolk, a

consumer advocate and expert on viatical settlements (arrangements in which dying persons sell their

life insurance policies to investors to help pay for medical care and other expenses), posted negative

comments on her website about Plaintiff Wilbanks, a broker of such settlements. Id. at 833, 889. Wolk

had written several books on viaticals, and acted as a consumer watchdog and an expert on issues

surrounding viatical settlements. Id. at 889. On her website, Wolk published the following related to

Wilbanks:

Be very careful when dealing with this broker. Wilbanks and Assoc. is under investigation by the CA dept. of insurance. The complaint originated with a California viator who won a judgment against Wilbanks. How many others have been injured but didn't have the strength to do anything about it? The company is under investigation. Stay tuned for details. Wilbanks and Associates provided incompetent advice. Wilbanks and Associates is unethical.

Id. at 890, 901.

Plaintiff Wilbanks filed a complaint against Wolk for defamation and Wolk moved to strike

pursuant to California’s anti-SLAPP statute in which the lower court granted Wolk’s anti-SLAPP

motion. Id. at 890. In reversing the grant of the anti-SLAPP motion, the Court of Appeal stated that


ER 257

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Wolk’s publication suggested that Plaintiffs engaged in unethical or incompetent practices. Id. at 902.

The court held that such express or implied assertion of incompetent and unethical business practices

could not be viewed as statements of opinion. Id. at 902-03. Citing Milkovich v. Lorain Journal Co.,

487 U. S. 1, 19, supra, the court stated, “[e]ven if the speaker states the facts upon which he bases his

opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the

statement may still imply a false statement of fact.” Id. at 903.

In support to her special motion to strike, Wolk submitted a declaration that she had been

informed by a viator who won a judgment in small claims against Wilbanks and that the viator had

filed a complaint with the State’s department of insurance. Wilbanks, supra, at 903. However, as the

court determined, Wilbanks was in fact not under active investigation (although a complaint had been

filed against him by a disgruntled viator), however Wolk had presented an assertion suggesting that

Wilbanks was in fact under investigation. Id. Wolk presented that her publication was “merely stating

the facts and drawing her own opinion from them.” Id. However, the court stated:

Wolk's own position as a crusader and watchdog to the industry also works against any argument that she was merely stating the facts and drawing her own opinion from them. An accusation that, if made by a layperson, might constitute opinion may be understood as being based on fact if made by someone with specialized knowledge of the industry. (Slaughter v. Friedman (1982) 32 Cal.3d 149.) Wolk here held herself out to have special knowledge resulting from extensive research into the viatical industry; i.e., she claimed to be a person who could recognize and identify unethical practices that the average person might not recognize. Wolk clearly expected readers to rely on her opinions as reflecting the truth.

Id. at 904.

Here, just like Wolks’ publication, it is undisputed Perens published statements explicitly or

implicitly suggesting OSS was violating the GPL, and customers should avoid using its product or

subject itself to legal liability. Further, just like Wolk, it is undisputed that Perens is a subject matter

on open source matters, has written numerous books on the matter, has provided 250+ attorneys with


ER 258

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continuing legal education lectures, has represented himself as an expert in court and is an advocate of

the open source community. Also, just like Wolk, there is no dispute that Perens has held out to have

specialized knowledge in the open source community, and has clearly expected readers to rely on his

opinions as reflecting the truth. Also see Perens Decl. ¶ 8 (ECF No. 32-3).

The court also held that Wolk did not check with plaintiffs before publishing the material and

her refusal to discuss the matter with Wilbanks was viewed as a lack of interest in the truth, thus Wolk

acted negligently or possibly with a reckless disregard for the truth. Id. at 906.

Similarly here, Perens did not check with Plaintiffs before publishing with material, Perens

stated that publishing his blog posts was “more effective than writing to” Plaintiffs. See FAC ¶72. Also

see Perens’ Opposition to OSS’ Motion for Partial Summary Judgment, Ex. 2, p. 10-11 (ECF No. 32-

2). Further, Perens agrees that he is not aware of any case law which reasonably suggests that

Plaintiffs may be in violation of the GPL. Thus, Perens either acted negligently or with reckless

disregard of the truth.

The Wilbanks court further concluded, that the facts implied that the publication as a whole was

provably false. Id. at 904. The court reasoned that despite the existence of a judgment against

Wilbanks, he was never under active investigation and he could show that his business practices were

in fact not unethical. Id. Since Perens statements cannot be considered as mere opinions, and being a

subject matter expert he expected his readers to rely on his publication as the truth, OSS can

demonstrate that the publication as whole is provably false. Specifically, OSS can demonstrate that

there has been no initiation of any legal proceeding against them that can even remotely suggest a

possibility that they have been in violation of the GPL. Spengler Decl. ¶12. Further, OSS is unaware if

any of its customers have been contacted regarding possible contributory infringement or breach of

contract by, or threatened of legal action by, anyone from the Linux kernel code developers. Spengler


ER 259

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Decl. ¶ 13. Furthermore, OSS can demonstrate and convince a fact finder, based on the explicit clauses

of the GPL, that it has been in compliance of the laws of contract and copyright and can thus prove that

Perens’ assertion that OSS has been violating the GPL is unreasonable and not true.

A license agreement, by definition, can only apply to a product or service which is agreed upon

– in other words, there needs to be an agreement. Since the GPL only governs the current “Program”

under which it is released, reasonably, there can be no demand or expectation of a grant of right of a

software that has not even been released. Furthermore, the GPL in its preamble provides the licensee

the “freedom to distribute free software (and charge for it as a service if you wish to)... .” Since

Plaintiffs are incorporating Linux kernel code into their patches, as a licensee of the Linux kernel, the

freedom to distribute their modifications or additions to the Linux kernel code, is also granted to

Plaintiffs under the GPLv2. Since freedom to distribute code means to distribute (or not distribute

code) without any consequences, Plaintiffs have the inherent right to not distribute code if they choose

to do so. Further, since each version or update is technically new software and is released

independently under the GPL, Plaintiffs are explicitly granted, under the GPL, the freedom to

distribute each version, at their discretion. Thus, there can be no violation of the GPL. Finally, it is

well known that a business can choose with whom it may do business and with it may not. However,

Perens wants this Court to follow his absurd rationale and contradict common law principles worth of

many decades of wisdom, if not centuries. Based on paragraphs 12 – 32 of the First Amended

Complaint, Plaintiffs request this Court to take Judicial Notice that Plaintiffs are not in violation of the

GPL.

However, for the purposes of this special motion to strike, even if the Court decides not to

determine whether Plaintiffs were in compliance of the GPL, Perens’ own admission that the Access


ER 260

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Agreement does not violate the GPL provides proof that at the publications of his blog posts are

provably false, as explained further.

“The problem isn’t with the text there. It’s with what else they have told their customers. It doesn’t even have to be in writing.”

OSS contends the above stated paragraph by Perens, in response to a Slashdot.org commenter,

who provided Perens a link of the Access Agreement, demonstrates that Perens has admitted that the

Access Agreement did not violate the GPL. OSS contends that by “the text there” Perens meant the

text of the Access Agreement, since the Slashdot.org commenter had stated, “I’ve had a look over their

agreement here [grsecurity.net] ...” (underline in original indicating a web-link). OSS contends “there”

was a reference and reasonable response to “here.” Furthermore, Perens continued “[i]t’s with what

else they have told their customers,” clearly suggesting that he agreed that the problem was not with

the Access Agreement, but with what OSS had told their customers. Reasonably, the paragraph when

considered as a whole suggests a strong finding that Perens agreed that the Access Agreement did not

violate the GPL. Yet, on July 10, 2017, Perens explicitly stated that the Access Agreement was in

violation of the GPL.

However, Perens has taken great measures to deny such a reasonable contention and his

inference, arguably, crosses the boundaries of logic and rational thinking.9 Although, Plaintiffs

contend their partial motion for summary judgment should be granted, even if the Court were to deny

such a motion, at the very least, a dispute of material fact has been identified, and a trier of fact may

very well find in favor of Plaintiffs. Further, it has already been alleged that Perens did not have any

reliable witnesses who could confirm that either the Access Agreement was in violation of the GPL or

that Plaintiffs had made verbal statements suggesting a violation of the GPL, and a trier of fact may

find in favor of Plaintiffs.

9 See Perens’ opposition to Plaintiff’s motion for partial summary judgment (ECF No. 32).


ER 261

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(ii) False Light

The Restatement Second of Torts, section 652E provides:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

“California common law has generally followed Prosser’s classification of privacy interests as

embodied in the Restatement.” Hill v. National Collegiate Athletic Assn. 7 Cal.4th 1, 24 (1994). “In

order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a

reasonable person. Although it is not necessary that the plaintiff be defamed, publicity placing one in a

highly offensive false light will in most cases be defamatory as well.” Fellows v. National Enquirer 42

Cal.3d 234, 238–239 (1986).

Here, while Plaintiff OSS alleges defamation per se and defamation per quod, Plaintiff

Spengler does not allege he has personally been defamed by the blog posts. However, since Spengler’s

name is generally associated with Plaintiff OSS, Spengler claims false light as an implication of the

Postings resulting him in harm personally. Thus, the false light claims are not superfluous.

(iii) Intentional Interference with Prospective Economic Advantage

“[S]pecific intent is not a required element of the tort of interference with prospective economic

advantage....[ A] plaintiff may alternately plead that the defendant knew that the interference was

certain or substantially certain to occur as a result of its action.” Korea Supply Company V. Lockheed

Martin Corp 29 Cal.4th 1134, 1154 (Cal. 2003). “Although varying language has been used to express

this threshold requirement, the cases generally agree it must be reasonably probable that the

prospective economic advantage would have been realized but for defendant’s interference.” Youst,

supra, at p. 71. “[I]n the absence of other evidence, timing alone may be suffıcient to prove causation. .


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- 25 - 3:17-CV-04002-LB


TO STRIKE

. . Thus, . . . the real issue is whether, in the circumstances of the case, the proximity of the alleged

cause and effect tends to demonstrate some relevant connection. If it does, then the issue is one for the

fact finder to decide.” Overhill Farms, Inc. v. Lopez 190 Cal.App.4th 1248, 1267 (2010).

Perens, in his original blog post claimed he had “several reliable witnesses.” FAC ¶42.

Moreover, Perens claimed “It's with what else they have told their customers. It doesn't even have to be

in writing. I have witnesses. ...” FAC ¶45. Clearly, Perens has asserted he has knowledge about an

economic relationship, either with a present customer or potential customer who has enquired about

the Access Agreement from Plaintiffs. While Plaintiffs allege Perens does not have such knowledge,

based on Perens’ own assertions, he knew about a relationship, that remains unknown to Plaintiffs.

Further Plaintiffs have also alleged that 35 potential customers have not engaged in business with

Plaintiffs since the publication of the defamatory statements. FAC ¶74. Furthermore, four existing

customers ceased business relationships with Plaintiff after the publication of the defamatory

statements. FAC ¶ 75. It is further alleged that it is reasonably probable that the prospective economic

advantage would have been realized but for defendant’s interference. FAC ¶ 111.

IV. CONCLUSION

This Court should thus dismiss Perens Special Motion to Strike and Motion to Dismiss, and

award Plaintiffs its attorney’s fees for having to oppose this frivolous motion.

Date: November 21, 2017



s/Rohit Chhabra

Rohit Chhabra Attorney for Plaintiffs

Open Source Security Inc. & Bradley Spengler


ER 263

EXHIBIT 1


ER 264

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CHHABRA LAW FIRM, PCROHIT CHHABRA (SBN 278798)Email: rohit@ thela\a'firm. io257 Casto Steet Suite 104Mountain Vieq CA 94041Telephone: (650) 564-7929

Attorney for PlaintiffsOpen Souce Security Inc. andBmdley Spengler

T]NITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

SAN TRANCISCO DIVISION

) Case No.: 3:17-cv-04002-LBOPEN SOURCE SECURITY INC. and )BRADLEYSPENGLER )Plaintiffs, ) Declaratiotr of Bradley Spengler in Support

) of Plaintiffs Opposition to Perens' Second) Special Molion to Strike and Motion to) Dismiss

BRUCE PERENS, and Does 1-50, )

Defendants. l) Location: Courtroom C, 15th Floor) Judge: Hon. Laurel Beeler))))))

3:17-CV-04002-LA

Declaration of Bradley Spengler in Support of Plaintiffs Opposition to Per€ns' Special Morion ro Strike and Motion toDismiss


CHHABRA LA W FIRM, PC 1 ROHIT CHHABRA (SBN 278798)

Email: [email protected] 2 257 Castro Street Suite 104

Mountain View, CA 94041 3 Telephone: (650) 564-7929

4 Attorney for Plaintiffs Open Source Security Inc. and

5 Bradley Spengler

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10



OPEN SOURCE SECURITY INC. and 11 BRADLEY SPENGLER

) Case No.: 3:17-ev-04002-LB ) )

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Plaintiffs,

v.

BRUCE PERE S, and Does I-50,

Defendants.

) Declaration of Bnldley Spengler in Support ) of Plaintiffs Opposition to Perens' Second ) Special Motion to Strike and Motion to ) Dismiss ) ) ) ) Location: Courtroom C, 15th Floor ) Judge: I-Ion. Laurel Beeler ) ) ) ) )

~---------- )

3:17-CV-04002-LB

Declaration of Bradley Spengler in Support of Plaintiffs Opposition to Perens' Special Motion to Strike and Motion to Dismiss ER 265

CHHABRA LA W FIRM, PC 1 ROHIT CHHABRA (SBN 278798)

Email: [email protected] 2 257 Castro Street Sui te 104

Mountain View, CA 94041 3 Telephone: (650) 564-7929

4 Attorney for Plaintiffs Open Source Security Inc. and

5 Bradley Spengler

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UNITED STATES DISTRI CT COURT NORTHERN DISTRICT OF CA LIFORNIA


OPEN SOURCE SECURITY INC. and 11 BRADLEY SPENGLER

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Plaint iffs,

v.

BRUCE PERE S. and Does I-50,

Defendants.

) Case No.: 3: 17-cv-04002-LB ) ) ) Declaration of Bradley Spengler in Support ) of Plaintiffs Opposition to Perens' Second ) Special Motion to Strike and Motion to ) Dismiss ) ) ) ) Location: Courtroom C, 15th Floor ) Judge: I-Ion. Laurel Beeler ) ) ) ) ) )

3:17-CV-04002-LB

Declaration of Bradley Spengler in Support of Plaintiffs Opposition to PeTens' Special Motion to Strike and Mot ion to Dismiss

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2a

Declaration of Bradley Speneler

I, Bradley Spengler, declare:

l. I am the CEO and lone share-holder ofOpen Source Security, Inc. ("OSS").

2. Prior to October 13, 2017, I on behalf of OSS employed foul part-time independent

contactors. I curently employ three part-time independent contractors on behalfofOSS.

3. Prior to July 1 1, 2017. except for having Intemet presence at lrqr:.l$ 1r N.gr :.c:iiil,r .r r. i,

OSS has not engaged in advertising-related activities for its grsecurity product.

4. To the best ofmy knowledge, I have not undertaken any voluntary affirmative action

through which I would have attempted to seek to influence the resolution ofany public issue related to

the GPL.

5. At or about September 2015, I established an Access Agreement with OSS' customeN

6. As ofJune 28, 2017, OSS had approximately 45 customers who had access to the

grsecurity product source code tkough its Intemet resources.

7. Ifa customer does not require OSS' service, they are free to modify, host, copy,

redist bute, and even charge for their services for the patches in their possession. since such a right is

granted within the GPL.

8. OSS does not engage in a discriminatory pFctice under any State or Federal law or

regulation.

9. Prior to July 1 1, 2017, to the best of rny knowledge, I have not conveyed any verbal

statements about OSS' Access Agreement or its redistribution policies to anyone.

10. I was mentally dishessed by the blog posts and comments posted on slashdot.org; thc

negative publicity that it generated towards me, by implication ofOSS, and the potential to limit my

-1-l:17-CV-04002-LB

Declaration ofBradley Spengler in Support ofPlaintiffs Opposition io Perens' Special Motion to Strike and Motion toDism;ss


1 I>eclaration of Bradlcv Spengler

2 I, Bradley Spengler, declare:

3

4

5

l.

2.

I am the CEO and lone share-holder of Open Source Security, Inc. ("aSS").

Prior to October 13 , 2017, I on behalf ofOSS employed four part-time independent

6 contractors. I currently employ three part-time independent contractors on behalf of ass.

7

8

9

10

3. Prior to July 11, 2017, except for having Internet presence at http://w\\\\.grsecurity.net.

ass has not engaged in advertising-related activities for its grsecurity product.

4. To the best of my knowledge, I have not undertaken any voluntary affinnative action

11 through which I would have attempted to seek to influence the resolution of any public issue related to

12 the GPL.

13

14

15

5. At or about September 2015, I established an Access Agreement with ass ' customers

who are primarily pri vate entities.

6. As of June 28, 2017, ass had approximately 45 customers who had access to the

16 grsecurity product source code through its Internet resources.

17

18 7. If a customer does not require ass ' service, they are free to modify, host, copy,

19 redistribute, and even charge for their services for the patches in their possession, since such a right is

granted within the GPL. 20

21 8. ass does not engage in a discriminatory practice under any State or Federal law or

22 regulation.

23

24 9. Prior to July 11 , 2017, to the best of my knowledge, I have not conveyed any verbal

25 statements about ass ' Access Agreement or its redistribution policies to anyone.

26 10. I was mentally distressed by the blog posts and comments posted on s]ashdot.org; the

27 negative publicity that it generated towards me, by implication of ass, and the potential to limit my

28 H----------------------------_71_----------------------------3: 17-CV-04002-LB


1 I)cciaration of Bradlcv Spengler

2 I, Bradley Spengler, declare:

3

4

5

l.

2.

I am the CEO and lone share-holder of Open Source Security, Inc. ("'aSS").

Prior to October 13 , 20 17, I on behalf of ass employed four part-time independent

6 contractors. I currently employ three part-time independent contractors on behalf of ass.

7

8

9

10

3. Prior to July II, 2017, except for having Internet presence at hnp://\\ \\\\ .grsecurit\ .nrt.

ass has not engaged in advertising-related activities for its grsecurity product.

4. To the best of my knowledge, I have not undertaken any voluntary affirnlative action

11 through which I would have attempted to seek to influence the resolution of any public issue related to

12 theGPL.

13

14

15

5. At or about September 2015, I established an Access Agreement with ass ' customers

who are primarily private entities.

6. As of June 28, 2017, OSS had approximately 45 customers who had access to the

16 grsecurity product source code through its Internet resources.

17

18 7. If a customer does not require ass ' service, they are free to modify, host, copy,

19 redistribute, and even charge for their services for the patches in their possession, since such a right is

granted within the GPL. 20

21 8. ass does not engage in a discriminatory practice under any State or Federal law or

22 regulation.

23

24 9. Prior to July 11, 2017, to the best of my knowledge, I have not conveyed any verbal

25 statements about ass ' Access Agreement or its redistribution policies to anyone.

26

27

28

10. [ was mentally distressed by the blog posts and comments posted on slashdot.org; the

negative publicity that it generated towards me. by implication ofOSS, and the potential to limit my

-1-3: 17-CV-04002-LB

Declaration of Brad ley Spengler in Support of Plaintiffs Opposition to Perens' Special Mot ion to Strike and Motion to Dismiss

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ability to do business and loss ofreputation in the community forced me to seek psychological help for

emotional distress.

I l. OSS provides its services to a niche segment within the open source cornmunity; this

niche sggmgnt involves businesses that consider using our kemel haidening prcduct, Grsecurity@,

instead of the default kemel security provided by the Linux kemel code developer commurity.

12. I am unaware ofany legal proceeding against OSS that can even rcmotely suggest a

possibility that Stable Patch Access Agreemenr of Grsecurity has been in violation of the cPL.

13. OSS is unaware ifany ofits customers have been contacted regarding possible

contributory infringement or breach of contact by, or threatened of legal action by, anyone ftom the

Linux kemel code developers.

I declare under penalty ofperjury under the laws ofthe United States that the foregoing is

true and corect.

Executed this 21st day of November 2017 in Lancaster, Pennsylvania.

-2-3:17"CV-04002-LB

Declamtion ofBmdley Spengler in Support of Plaintiffs Opposition to Pereni Special Motion to Strike and Motion toDismiss

Bradley Spengler


1 ability to do business and loss of reputation in the community forced me to seek psychological help for

2

3

emotional distress.

11. OSS provides its services to a niche segment within the open source community; this

4 niche segment involves businesses that consider using our kernel hardening product, Grsecurity®,

5 instead of the default kernel security provided by the Linux kernel code developer community.

6

7 12. I am unaware of any legal proceeding against OSS that can even remotely suggest a

possibility that Stable Patch Access Agreement of Grsecurity has been in violation of the GPL. 8

9 13. OSS is unaware if any of its customers have been contacted regarding possible

10 contributory infringement or breach of contract by, or threatened of legal action by, anyone from the

11 Linux kernel code developers.

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I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed this 21st day of November 2017 in Lancaster, Pennsylvania.

Bradley Spengler

28 ~ ----------------------------_=2_----------------------------3:17-CY-04002-LB


1 ability to do business and loss of reputation in the community forced me to seek psychological help for

2

3

emotional distress.

11. OSS provides its services to a niche segment within the open source community; this

4 niche segment involves businesses that consider using our kernel hardening product, Grsecurity®,

5 instead of the default kernel security provided by the Linux kernel code developer community.

6

7 12. I am unaware of any legal proceeding against ass that can even remotely suggest a

possibility that Stable Patch Access Agreement of Grsecurity has been in violation of the GPL. 8

9 13. OSS is unaware if any of its customers have been contacted regarding possible

10 contributory infringement or breach of contract by, or threatened of legal action by, anyone from the

11 Linux kernel code developers.

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I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Executed this 21 st day of November 2017 in Lancaster, Pelillsylvania.

Bradley Spengler

28~ ----------------------------_=2_----------------------------3:1 7-CV-04002-LB

Declaration of Bradley Spengler in Support of Plaintiffs Opposition to Perens' Special Motion to Strike and Motion to Dismiss

1 MELODY DRUMMOND HANSEN (S.B. #278786) [email protected]

2 HEATHER J. MEEKER (S.B. #172148) [email protected]

3 O'MEL VENY & MYERS LLP 2765 Sand Hill Road

4 Menlo Park, California 94025-7019 Telephone: +l 650 473 2600

5 Facsimile: + 1 650 473 2601

6 CARA L. GAGLIANO (S.B. #308639) [email protected]

7 Two Embarcadero Center 28th Floor

8 San Francisco, California 94111-3823 Telephone: +1415 984 8700

9 Facsimile: +1 415 984 8701

10 Attorneys for Defendant Bruce Perens

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO

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16 OPEN SOURCE SECURITY, INC., and BRADLEY SPENGLER,

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Plaintiffs,

v.

BRUCE PERENS, and Does 1-50,

Defendants.

Case No. 3:17-cv-04002-LB

SUPPLEMENTAL DECLARATION OF BRUCE PERENS IN SUPPORT OF DEFENDANT'S OPPOSITION TO OPEN SOURCE SECURITY, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Hearing Date: December 14, 2017 Time: 9:30 a.m. Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler

PERENS SUPPLEMENTAL DECL. ISO DEFENDANT'S OPP. TO MPSJ

CASE NO. 3:17-CV-04002-LB


ER 268

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SUPPLEMENTAL DECLARATION OF BRUCE PERENS

I, Bruce Perens, declare as follows:

1. I am an individual and a named defendant in this action. I submit this declaration

4 in response to OSS' s incorrect characterizations in its Reply (ECF No. 3 7) of my October 31,

5 2017 Declaration (ECF No. 32-3), and to correct my October 31 Declaration and provide

6 additional information regarding the precise timing of when I first received and reviewed the full

7 Grsecurity Agreement. Unless stated otherwise, I have personal knowledge and am informed of

8 the facts stated herein and, if called to testify, I could and would testify completely hereto.

9 2. Plaintiff's Reply Memorandum in Support of its Partial Motion for Summary

10 Judgment asserts that a comment I posted on the website Slashdot on or around July 9, 2017 at

11 5:09 p.m. PDT "admitt[ed] that there was no problem with the Grsecurity Agreement as it relates

12 to the GPL." Reply at 4. In that comment, I stated, in part: "The problem isn't with the text

13 there. It's with what else they have told their customers. It doesn't even have to be in writing."

14 October 31 Drummond Hansen Deel. Ex. A at 11. Plaintiff's Reply also contends that I now

15 "admit[] that [I] understood that the Grsecurity Agreement did not violate the GPLv2" before

16 posting my July 9, 5:09 p.m. comment because my October 31 Declaration "does not dispute or

17 attempt to clarify what [I] meant by 'text' or 'there."' Reply at 3-4. Plaintiff's Reply also

18 misconstrues my statement in my October 31 Declaration regarding when I "first" read the

19 Slashdot commenter and suggests that my "silence" about when I reviewed it for the "second"

20 time means that I had read the Grsecurity Agreement before my 5:09 p.m. post. Reply at 3-4.

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3. Plaintiff misconstrues my comments. As I stated in my October 31 Declaration,

when I posted my July 9, 5:09 p.m. comment, I was responding to a comment posted by a reader

roughly 10 minutes earlier, around 4:58 p.m. PDT, which stated in part:

I've had a look over their agreement here [grsecurity.net], and there is nothing to prevent redistribution of a patch under the terms and conditions of the GPLv2. It states that if it a patch is distributed outside of the terms of the GPLv2, then access to further patches in the future (not the patch provided) will be denied on a works for hire basis.

1 PERENS SUPPLEMENTAL DECL. ISO

DEFENDANT'S OPP. TO MPSJ CASE NO. 3: l 7-CV-04002-LB


ER 269

1 October 31 Perens Deel. ii 10 (emphasis in original); see also October 31 Drummond

2 Hansen Deel. Ex. A at 11. As stated in paragraph 10 of my October 31 Declaration and as

3 further supported by the exhibits attached to this Supplemental Declaration, I had not yet

4 seen the Grsecurity Agreement when I posted my July 9, 5:09 p .m. comment, nor had I

5 realized that the 4:58 p.m. comment I was responding to included a link to the Agreement.

6 I did not, as Plaintiff's Reply suggests, read the Agreement as part of a "second" or "third"

7 review of the commenter's post before responding 10 minutes later.

8 4. In the portion of my July 9, 5:09 p.m. comment that reads "The problem isn't with

9 the text there," I was referring to the portion of the other poster's July 9, 4:58 p.m. comment that

10 purported to quote or paraphrase the Grsecurity Agreement. As explained in paragraph 10 of my

11 October 31 Declaration, because I understood from email lists that Plaintiff was communicating

12 terms to its customers that limited customers' ability to redistribute software, I responded to

13 indicate my opinion that communicating such restrictions to customers violates the GPL

14 regardless of whether those terms appear in writing. October 31 Perens Deel. ii 10. My intention,

15 and the plain meaning of my statement, was that OSS's restrictions violate the GPL, regardless of

16 whether their restrictions are in writing.

17 5. In paragraph 12 of my October 31 Declaration, I stated, "Later that evening, when

18 I reviewed the text of the Stable Patch Access Agreement for myself, I determined that the

19 Agreement did in fact include a written term that imposed restrictions consistent with the reports I

20 had read." This referred to the evening ofJuly 9, 2017. After reviewing OSS 's Reply, to respond

21 to OSS's incorrect suggestion that I had reviewed the Grsecurity Agreement before my July 9th

22 post, I searched my emails to see whether I could determine definitively when I first received and

23 reviewed the full Grsecurity Agreement. I located emails demonstrating that I received the

24 Agreement the next morning, on July 10.

25 6. Attached as Exhibit 1 is a copy of an email sent to me on or around July 10, 2017

26 at 4:01 a.m. PDT, which quoted the Grsecurity Agreement's non-redistribution clause and

27 attached a copy of the full Agreement (Exhibit 2).

28


DEFENDANT'S OPP. TO MPSJ CASE NO. 3: I 7-CV-04002-LB


ER 270

7. Attached as Exhibit 3 is a copy of my response to that email, sent on or around

2 July 10 at 8:12 a.m. PDT, in which I replied that I had not had a copy of the Agreement before. I

3 also expressed surprise that OSS would put such restrictions in writing. I have also determined

4 that my email response of July 10 is publicly available at the URL https://lists.debian.org/debian-

5 user/2017/07/msg00653.html, as part of the same "thread" as the July 14 email that is attached as

6 Exhibit 9 to Plaintiffs First Amended Complaint.

7 8. After reviewing the 4:01 a.m. email and the attached Agreement, I determined that

8 the problematic terms were in fact written in the Grsecurity Agreement itself and updated my

9 blog to say so. I updated my blog post to provide a link to the Agreement and to state that

IO "[u]nder [Grsecurity's] Stable Patch Access Agreement, customers are warned that if they

11 redistribute the Grsecurity patch, as would be their right under the GPL, that they will be assessed

12 a penalty." See First Amended Complaint Ex. 2 (updated blog post); Ex. IO at 3, line 84

13 (showing update time of July 10, 2017 at 8: 11 a.m. PDT). I stated in my 8: 12 a.m. email that I

14 had done so. See Exhibit 2.

15

16 I declare under penalty of perjury under the laws of the United States that the foregoing is

17 true and correct, and that this declaration was executed this J-..1-tti day of November 2017 in

18 &r<.kf Lf.~ , California.

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DEFENDANT'S OPP. TO MPSJ CASE NO. 3:17-CV-04002-LB


ER 271

EXHIBIT 1


ER 272

11/15/2017 Equipment Unit LLC Mail - Fwd: Re: [kernel-hardening] Why does no one care that Brad Spengler of GRSecurity is blatantly violating the intenti…

https://mail.google.com/mail/u/1/?ui=2&ik=e19c504b55&jsver=M-xhRWn0lp0.en.&view=pt&msg=15d2c299ab5024f7&q=Re%3A%20Why%20does%20… 1/1

Bruce Perens <[email protected]>

Fwd: Re: [kernel-hardening] Why does no one carethat Brad Spengler of GRSecurity is blatantlyviolating the intention of the rightsholders to theLinux Kernel?

[email protected]<[email protected]>

Mon, Jul 10, 2017 at4:01 AM

To: Bruce Perens <[email protected]>Cc: [email protected], [email protected], Eric Raymond<[email protected]>, [email protected], [email protected]

This may also be of interest:

From GRSecurity's "Stable Patch Agreement":

"Notwithstanding these rights and obligations, the User acknowledgesthat redistribution of the provided stable patches or changelogs outsideof the explicit obligations under the GPL to User's customers will result intermination of access to future updates of grsecurity stable patches andchangelogs."

IE: If you choose to redistribute, other than in the case of a demandmade by a user, retaliation will occur. They even put it in writing.

PDF attached.

grsecstablepatchaccessagreement_additionalterms.pdf 43K


ER 273

https://mail.google.com/mail/u/1/?ui=2&ik=e19c504b55&view=att&th=15d2c299ab5024f7&attid=0.1&disp=attd&safe=1&zw

EXHIBIT 2


ER 274

Stable Patch Access Agreement

Last updated: 10/02/2016

This Stable Patch Access Agreement ("Agreement") allows access to the stableversions of grsecurity® kernel patches. An authorized user includes theindividual(s) provided with login credentials directly by Open Source Security, Inc("the Company"). or others within the organization involved in the stable patchsubscription identified to Open Source Security, Inc. (collectively, "the User")

Confidentiality

The User agrees that the User is responsible for maintaining the confidentiality oftheir login credentials. Disclosure of these credentials is prohibited except asallowed by this agreement.

Redistribution

The User has all rights and obligations granted by grsecurity's software license,version 2 of the GNU GPL. These rights and obligations are listed athttp://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html(http://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html).

Notwithstanding these rights and obligations, the User acknowledges thatredistribution of the provided stable patches or changelogs outside of the explicitobligations under the GPL to User's customers will result in termination of accessto future updates of grsecurity stable patches and changelogs.

Making and using copies of the stable patches within a single organization is notconsidered redistribution (see the GPL FAQ here: https://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.en.html#InternalDistribution(https://www.gnu.org/licenses/old-licenses/gpl-2.0-

(/index.php)

grsecurity https://grsecurity.net/agree/agreement.php

1 of 3 07/07/2017 10:28 PM


ER 275

faq.en.html#InternalDistribution)).

If the User has received pricing for the stable patches on a specific product, useof the patches on additional products without the consent of the Company willresult in termination of access to future updates of grsecurity stable patchesand changelogs.

Works Made For Hire

No work performed in the process of grsecurity stable patch maintenance orchanges made to the grsecurity patches as part of a support agreement shall beconsidered "works made for hire". Unless a specific arrangement has been putforth otherwise by the Company, the Company retains all Intellectual Propertyrights and will publish these changes under the GPL to all customers.

Governing Law

This Agreement shall be governed by and construed in accordance with the lawsof Pennsylvania without regard to the conflicts of laws provisions thereof.Exclusive jurisdiction and venue for any action arising under this Agreement is inthe federal and state courts having jurisdiction over The Company's principaloffice, and both parties hereby consent to such jurisdiction and venue for thispurpose.

Termination

While the Company aims only to terminate access to the stable patches in theevent of willful violation of the terms in this agreement, we reserve the right torevoke access to the stable patches and changelogs at any time for any reason.In the event of termination, the Company will at its own discretion refundpayment for any remaining pre-paid period.

Waiver of Liability

The Company is not liable for any claims, damages, costs, expenses or loss ofany kind that may be made or incurred as a result of either the User's access orrevocation of access to grsecurity stable patches.


2 of 3 07/07/2017 10:28 PM


ER 276

Trademark Policy (trademark_policy.php)

© Open Source Security, Inc 2013-2017.grsecurity is a registered trademark of Open Source Security, Inc. Linux is the registered trademark of

Linus Torvalds.

QUICK LINKS

Home(index.php)

Features(features.php)

Support(support.php)

Papers(papers.php)

Blog (blog.php)

Download(download.php)

GET IN TOUCH

949-424-7732 (tel:949-424-7732)

[email protected] (mailto:[email protected])


3 of 3 07/07/2017 10:28 PM


ER 277

EXHIBIT 3


ER 278

11/15/2017 Equipment Unit LLC Mail - Fwd: Re: [kernel-hardening] Why does no one care that Brad Spengler of GRSecurity is blatantly violating the intenti…

https://mail.google.com/mail/u/1/?ui=2&ik=e19c504b55&jsver=M-xhRWn0lp0.en.&view=pt&msg=15d2d0f611f9163b&q=re%3A%20why%20does%20n… 1/1

Bruce Perens <[email protected]>

Fwd: Re: [kernel-hardening] Why does no one carethat Brad Spengler of GRSecurity is blatantlyviolating the intention of the rightsholders to theLinux Kernel?

Bruce Perens <[email protected]> Mon, Jul 10, 2017 at 8:12 AMTo: [email protected]: [email protected], [email protected], Eric Raymond<[email protected]>, [email protected], [email protected]

Thank you. I did not have a copy of the Grsecurity Stable Patch AccessAgreement before, and I've linked it to my article. IMO it's quiteimprudent of them to put down in writing how they restrict your GPLrights.


ER 279

http://perens.com/blog/2017/06/28/warning-grsecurity-potential-contributory-infringement-risk-for-customers/

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3:17-CV-04002-LB

Plaintiff’s supplemental memorandum of points & authorities

CHHABRA LAW FIRM, PC ROHIT CHHABRA (SBN 278798) Email: [email protected] 257 Castro Street Suite 104 Mountain View, CA 94041 Telephone: (650) 564-7929 Attorney for Plaintiffs Open Source Security Inc. & Bradley Spengler



OPEN SOURCE SECURITY INC. and BRADLEY SPENGLER Plaintiff, v. BRUCE PERENS, and Does 1-50, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB PLAINTIFFS’ SUPPLEMENTAL POINTS AND AUTHORITIES TO PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND SPECIAL MOTION TO STRIKE, DISCUSSING OVERSTOCK.COM INC. V. GRADIENT ANALYTICS, INC. 151 CAL. APP. 4TH 688 (2007) Hearing Date: December 14, 2017 Time: 9:30 a.m. Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler


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In Overstock.com Inc. v. Gradient Analytics, Inc. 151 Cal. App. 4th 688 (2007), the court had

to analyze a very similar issue as presented in the instant matter. Defendant Gradient provided

analytical reporting services on publicly traded companies through a subscription program to its

customers of large institutional investors. Id. at 693-94. Gradient generated a report about plaintiff

Overstock (NASDAQ Trading Symbol: OSTK), stating the following about Overstock’s financial

statements and accounting policies:

The most important update in this Alert is new evidence indicating that there is

literally `no there there' with respect to OSTK’s claimed motivation for changing

its revenue recognition model. As a consequence, we believe that it is misstating

revenues through a substantive violation of [General Accepted Accounting

Principles (GAAP)]. ... As we show, the amount of risk borne by OSTK is

virtually nil and, as a consequence, we believe that its use of gross method

revenue recognition violates the intent (if not the form) of GAAP.

...

...

This is the type of accounting policy choice that we believe the SEC would be

very interested in looking at. Id. at 702, Also see fn. 11.1

Overstock suffered damages and sued for libel and intentional interference with prospective

economic advantage based on allegedly false and defamatory statements contained in the Overstock

reports published by Gradient; Gradient filed special motion to strike pursuant to California’s anti-

SLAPP statute. Id. at 697-98.

Gradient contended that the statements were nonactionable speech because they were “either

(1) opinions based on fully disclosed fact; (2) rational interpretations of ambiguous sources; (3)

statements embodying complex and debatable technical judgments; or (4) statements too inexact or

subjective to be proven true or false.” Id. at 703. Overstock countered stating “that the contested

material implies defamatory statements of fact that can be objectively verified and as such these

1 “Generally accepted accounting principles (GAAP) are a common set of accounting principles,

standards and procedures that companies must follow when they compile their financial statements.

GAAP is a combination of authoritative standards (set by policy boards) and the commonly accepted

ways of recording and reporting accounting information.” Generally Accepted Accounting Principles –

GAAP, available at https://www.investopedia.com/terms/g/gaap.asp.


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statements are actionable as provably false statements of fact.” Id.

The court applied a ‘totality of circumstances’ test to determine whether a reasonable fact

finder could conclude the published statements declared a provably false assertion of fact, and that a

contextual analysis required the court to examine the nature and full content of the particular

communication as well as the knowledge and understanding of the audience target by the publication.

Id. at 701. Gradient also held itself out to its subscribers as having specialized knowledge in the areas

of accounting and its readers relied on its opinions are reflecting the truth about Overstock. Id. at 706.

Here Perens’ blog posts2 allege Plaintiffs’ are violating the GPL and thus Plaintiffs’ customers

are going to be held liable for using the Grsecurity product. Perens continued that he is willing to

discuss this issue with any company doing business with Plaintiffs, and that he had “several reliable

sources,” who could confirm that Plaintiffs were violating the GPL’s redistribution policy, suggesting

that he wanted Plaintiffs’ customers to believe his assertion that Plaintiffs’ business practices would

result in liability to them. Further, Perens is a known subject matter expert, one of the creators and

defenders of the open source movement, and advises engineers how to be in legal compliance with

open source related matters, thus his statements are generally going to be considered as facts by an

average open source community member, including Plaintiffs’ customers. Therefore, applying the

totality of circumstances test, the publications implied that Perens wanted Plaintiffs’ customers to

believe that Plaintiffs have engaged in unethical business practices which would risk liability on

Plaintiffs customers or have engaged at least in conduct, characteristics, or a condition that was

incompatible with the proper exercise of their lawful business, trade, or profession. See FAC ¶79.

Perens, similar to Gradient, argues that his statements alleging that Plaintiffs have violated the

GPL are incapable of being proven false. However, the Overstock court further noted that the Gradient

reports reasonably could be understood as implying Overstock’s reporting methods were in violation

of the GAAP. Id. at 704. The Overstock court further disagreed with Gradient’s contention that its

statements were a “technical issue for which there was no right or wrong answer.” Id. at 706. Instead

the court held, there was “a right or wrong answer to whether in multiple reports Gradient made false

2 First Amended Complaint at ¶¶ 42 and 48.


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statements of fact that are objectively verifiable and provably false, for example, that Overstock’s

accounting violated GAAP, with the implication that Overstock falsified its financials to mislead

investors.” Id.

Here, a significant similarity can be noted between the GPL and the GAAP. The GAAP

outlines standards and procedures, including authoritative standards set by policy boards, that

companies must follow when they compile their financial statements. Similarly, the GPL outlines

standards and procedures set by the Free Software Foundation, which software developers must follow

while releasing their software code under the license. Since the Overstock court held that a trier of fact

could determine if Overstock violated the GAAP, similarly, a trier of fact can determine if Plaintiffs

violated the GPL.

Thus, per the Overstock rationale this Court should at least take judicial notice of facts as

presented in FAC ¶¶ 29 – 313 and let the trier of fact determine if Plaintiffs are in violation of the GPL.

Since no statement or clause of the GPL or the Grsecurity Agreement are disputed by either party, a

trier of fact (if not this Court) can objectively verify whether Plaintiffs have violated the GPL with the

implication of having engaged in unethical business practices which would risk liability on Plaintiffs

customers or have engaged at least in conduct, characteristics, or a condition that was incompatible

with the proper exercise of their lawful business, trade, or profession. Therefore, the implied assertion

of Perens’ statements can be objectively verified (by either the Court, jury, or a combination thereof)

and as such these statements are actionable as provably false statements of fact.

Furthermore, malice, or at the very least negligence, can also be shown. The Overstock court

held that prima facie evidence of malice was established base on “evidence of negligence, of motive

and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate

inferences, the fact of a defendant's recklessness or of his knowledge of falsity.' A failure to

investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or

known to be biased against the plaintiff — such factors may, in an appropriate case, indicate that the

3 FAC ¶¶ 29 -31 state undisputed common law principles, namely, a business’ right to refuse to deal, or

not to deal, with any customer.


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publisher himself had serious doubts regarding the truth of his publication." Id. at 709-10, (citation

omitted).

Here, Perens has claimed to have several reliable sources to whom Plaintiff’s have conveyed

statements, verbally or otherwise, which suggest that Plaintiffs are in violation of the GPL. FAC ¶¶ 42,

45. However, Plaintiffs have alleged there cannot be such witnesses. FAC ¶ 46, Plaintiffs’ Opp. to anti-

SLAPP, Ex. 1, Spengler Decl. ¶ 9 (ECF. No. 38-1). Further, Perens admits that he published his blog

posts based on an email chain sent to an email list, and does not mention any facts related to his

reliable sources or witnesses. Def. Opp’n to Part. Mo. for Summary Judgment, Perens’ Decl. ¶¶6-7

(ECF No. 32-3). At the time of the initial publication, except for an email published on a listserv by an

anonymous person, Perens did not even have access to the Grsecurity Access Agreement. Id., Perens’

Decl. ¶9. Also, Perens decided not to discuss his disagreement with Plaintiffs since he found his

tactics of publishing defamatory statements more effective than writing to Plaintiffs. FAC ¶79. Perens,

at one point, has also admitted that the Grsecurity Agreement does not violate the GPL, and that he had

witnesses that could prove Plaintiff’s violation. FAC ¶45. Yet, Perens updated his blog post and

explicitly stated that the Grsecurity violated the GPL. Thus, collectively, Plaintiffs have established

prima facie evidence that Perens had serious doubts regarding the truth in his publication or

intentionally published the statements with malice, oppression, and fraud. Nonetheless, such facts, at

the very least establish a prima facie case of negligence by Perens.

The Overstock court also held that prima facie showing of intentional interference with

prospective economic advantage was established “since a plaintiff's burden includes pleading and

proving that the defendant not only knowingly interfered with the plaintiff's expectancy, but engaged

in conduct that was wrongful by some legal measure other than the fact of interference itself.” Id. at

713, (citations omitted).

December 12, 2017.


/s/Rohit Chhabra

Rohit Chhabra

Attorney for Plaintiffs


ER 284

Pages 1 - 27



Before The Honorable Laurel Beeler, Magistrate Judge

OPEN SOURCE SECURITY INC., and )BRADLEY SPENGLER, ) ) Plaintiffs, ) ) VS. ) NO. C 17-04002 LB ) BRUCE PERENS, and Does 1-50, ) ) Defendants. ) ) San Francisco, California Thursday, December 14, 2017

TRANSCRIPT OF THE OFFICIAL ELECTRONIC SOUND RECORDING OF PROCEEDINGS

APPEARANCES: For Plaintiffs: Chhabra Law Firm 257 Castro Street, Suite 104 Mountain View, CA 94041 (650) 564-7929 BY: ROHIT CHHABRA For Defendants: O'Melveny & Myers LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111-3823 (415) 984-8700 BY: MELODY N. DRUMMOND HANSEN HEATHER JANINE MEEKER CARA LORRAINE GAGLIANO Also Present: Bruce Perens, Marissa Rhoades, Eric Ormsby Reported By: Lydia Zinn, CSR No. 9223, FCRR, Official Reporter

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Thursday - December 14, 2017 10:26 a.m.

P R O C E E D I N G S

---000---

THE CLERK: Calling Civil Action 17-4002, Open Source

Security, Inc., versus Perens. Counsel, Please state your

appearances for the record.

MS. HANSEN: Good morning, Your Honor.

THE COURT: Okay. Good morning.

MS. HANSEN: Melody Drummond Hansen for defendant,

Bruce Perens. With me are Cara Gagliano of O'Melveny & Myers,

Heather Meeker of O'Melveny & Myers. We have two first-year

associates with us here today, Marissa Rhoades and Eric Ormsby.

And Mr. Perens also is in attendance, as well.

THE COURT: All right.

MR. CHHABRA: Good morning, Your Honor.

Rohit Chhabra, representing the plaintiffs.

THE COURT: Okay. Good morning.

So just give me a second to move my files from the last

case over. Okay. You had mentioned you wanted to split your

argument. And how are you guys going to split the argument?

MS. HANSEN: Yes, Your Honor. Thank you for

accommodating that request. And --

THE COURT: Of course, of course. And I'll give you

some preliminaries of what I'm thinking --

MS. HANSEN: Good. Thank you.

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THE COURT: -- to help you talk about how we're going

to talk about this, because I have some ideas.

MS. HANSEN: Thank you. So we had thought of

splitting it as: Ms. Gagliano would cover the discovery

issues, and also the Motion for Partial Summary Judgment.

THE COURT: Okay. That's fine. I mean, my -- so

here's, of course, the motion part. I want to always give

people opportunities to argue; but you know, here's -- let me

talk about this -- what my concerns are with the overall

litigation, and then figure out how we're going to talk about

it.

You know. Look. I appreciate you did a lot of hard work,

including coming up with, you know, a different case. I -- I

just have concerns with the overall opinion landscape of the

litigation, overall. I do.

And so -- and then the kind of fix-it person in me thinks,

you know, I appreciate what you essentially --

You know, you get the picture a little bit from all the

different papers. This is a niche market for your client --

right? -- of 45 companies.

Your argument that you don't think there's any ultimate

problem with what your client did is agreement and opinion

disagreement in an unsettled landscape, perhaps.

Some cases that seem to be -- to be fairly

distinguishable, whether because of sort of complicit -- you

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know, in the GAAP case, you know, a classic, you know, holding.

You know, the investor and the -- holding certain positions,

and then eliciting people to affect stock prices is -- is sort

of very different than this context. I appreciate your

arguments about what you're saying is the small nature of the

issue as opposed to the, you know, overwhelmingly largish

nature of the issue, but you know, it -- it --

Having thought about the First Amendment in other contexts

more than this one, it strikes me as a --

You know, however sympathetic your client's interests may

or may not be, it seems problematic to shut down the discourse

on the issue under the kind of umbrella, I guess, of a

defamation claim. So I have some concerns about that.

You know, one of the issues -- and I don't -- you know,

one of the issues -- and I don't --

And I appreciate the harm that you've described that your

client has suffered. Right? You identified real harm. You

said what happened, and why it matters. And, you know, I

just -- it just strikes me -- yeah. I don't know what we're to

do about that.

You know. In the SLAPP context, you know, having -- I've

thought it -- just to kind of pull on that part of it, again,

in different cases, I've thought about the procedural context,

the SLAPP. This isn't a Rule 56 motion. It's a

motion-to-dismiss context. I -- because -- and, again, I'm

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reporting from the last time I did it. In fact, we have some

of the folks in the audience here had a SLAPP motion in their

case, and that's when I last dealt with the issue, or at least

on the phone. You know, it sort of feels to me that generally

the motion-to-dismiss analysis drives, first, leave to amend.

Then we sort of deal with what the ultimate landscape ends

up being on the SLAPP context -- in a SLAPP context.

That said, you know, I have concerns about the long term,

even though I would ordinarily grant leave to amend in cases

like this, despite your arguments to the contrary, just because

it's the first time. I've seen the round-one motions. And you

did as good a job as I think you could. I would, of course,

give leave to amend, because it's the one sure way to get into

trouble, is not to do that.

But then I just wonder if this is really the best way to

solve the situation. I -- I just don't --

You know, you have somebody who's -- who -- when he says

something, people listen. And it hurts. And I know this is --

And I know you had an ADR call. And I'm not saying that

you should have ADR, but it strikes me as a much better

process, if everyone would just get together and talk about

this situation from your clients' perspective. And, you know,

actually sitting at one table, which is how I do my own

settlement conferences -- it just struck me as maybe a way

through this sort of impasse that you're at with your client

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facing this real harm, with Mr. Perens having an actual

position on what the --

I don't know whether he's changed his position, for

example. I mean, that's -- positions change. Right? That's

one of the things that the law says. You're entitled to change

your mind. And it just -- one of my jokes in settlement

conferences is that litigation is a terrible way to solve

problems. And this seemed to me, given the SLAPP -- you know,

the First Amendment context, the anti-SLAPP context, it just

seemed -- you know, half the reason I wanted to get -- I just

thought I should say that out loud, because it just doesn't --

in many ways, I'm concerned that the litigation doesn't make

sense. So I -- you know, overall, the motion for summary

judgment is just premature.

And I'm sorry. I'm sorry. We could talk about it,

anyway, just to give you the experience of talking in court,

but that was the kind of context, because -- because I really

do like to give newer lawyers who have done all of the laboring

work on -- on motions an opportunity to talk about it. But

in -- the motion-to-dismiss context seemed to be the more

serious issue confronting us now.

So those are my preliminary observations. So I don't

know. I guess it's your motion, but it sounded like you wanted

to offer something first.

MR. CHHABRA: I just want to say, Your Honor -- so

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for the summary judgment, I honestly just wanted Mr. Perens'

declarations.

THE COURT: Yes.

MR. CHHABRA: So I -- and I got them. So.

THE COURT: And I know you picked apart some of the

dates: December 9th, December 10th.

MR. CHHABRA: Not only that the results are more --

THE COURT: Yes.

MR. CHHABRA: And, Your Honor, as far as, you know --

THE COURT: And I figured you were making a point

with the summary-judgment motion that was not necessarily one

that you thought you were going to win it. So that's fine.

I -- I just -- I just sort of put that to --

I mean, I read it, but I just sort of put it to the side.

Okay. So --

MR. CHHABRA: And as far as arbitration goes, we

are --

THE COURT: Or mediation.

MR. CHHABRA: Or mediation.

THE COURT: I don't need to know if they're willing,

but --

MR. CHHABRA: You know, but they were the ones who

said that they wanted to go through this process first, so

that's where we are.

THE COURT: I mean, so I'm not sure that -- so I --

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you know, the -- I want to hear your thoughts on my

inclinations, which are basically along the lines of -- I read

everything very carefully, including the declarations. The

thing that first rushed -- run through the papers was the kind

of admission issue, but then as I read it thoroughly and more

carefully, I thought it didn't change my mind about what I'm

going to call the "opinion landscape."

I read -- it's a big calendar, so this is a really big

day. I read some but not all of the cases. And so what -- I

have to think about some of the things a little bit more

deliberately, but that really had some -- you know, this is not

like that reaction to some of the cases; the GAAP case in

particular. But what are -- and so -- so --

MR. CHHABRA: I did give you the Overstock case?

THE COURT: The Overstock case. Exactly.

So -- so -- I think it was, yeah. A business model

doesn't make any sense. We're not assuming any risk, at all.

The collusion with the hedge-fund investors. And so it just is

very different. Of course, it came out that way. I mean, I --

in a different case a while ago, I spent a long time thinking

about what does and doesn't fall into the, you know, anti-SLAPP

landscape. So my -- so my -- so the order -- so I told you

what I think the answer is.

I am happy to hear anything that you want to offer to tell

me why I'm wrong. And then maybe you could respond to it.

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And then the thought is that even -- this is a kind of a

Judge Chen approach. Sometimes after he issues an Order,

dismissing without prejudice, there's the landscape for

suggesting mediation. Normally, we don't do that until the

pleadings settle one way or the other.

You might fairly say, No, we don't want to do that.

It just struck me that maybe there was an opportunity for

a private conversation protected by the mediation privilege,

not --

Lots of people do mediations in separate rooms, but I

think there can be a real utility to not doing it in a separate

room under the -- just to talk out the landscape of the

situation. And sometimes that makes people whose livelihoods

have been affected, who may or may not --

Again, I don't know anything about the product. I don't

know anything about the people. So I don't understand --

I mean, I understand what you've described to me; but I

don't understand necessarily the context of the problem. But

often people want to do things in a certain way; in a right

way. They don't want negative press -- blog press, or

whatever -- from somebody who has a potential to influence

people, who isn't acting malevolently, even if your client

experiences it that way, because --

And it just -- it struck me as an opportunity for

conversation.

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But let's deal with the merits. First, if you want to,

tell me why I'm wrong. And then you could respond to anything.

And then you'll tell me what your views are on this potential

mediation possibility.

MR. CHHABRA: Thank you, Your Honor.

So, Your Honor, there's actually been no case in which a

subject-matter expert who expresses his -- quote, unquote --

"opinions," and to whom a jury case like this one, which has

been actually held as an opinion -- there's actually not even

been one single case. Every single time the Court in the

Wilbanks case or the Overstock one -- both of them -- the court

specifically said, Okay. Who is speaking those words? And if

it's a subject-matter expert, what those words are going to

be -- like, what words are going to be transmitted; how the

average reader is going to understand them. And so that's the

biggest problem I have with this whole thing.

So for Your Honor to consider is: Can a subject-matter

expert like Mr. Perens, who's wearing the ring of authority --

he is the founding father of the Open Source movement. He has

got the power to persuade the masses. Can he, based on his

subjective disagreement with somebody's business practices --

can he go and tarnish their reputation?

THE COURT: No. I -- so that's -- I appreciate the

argument. One of the issues, though, is every time somebody --

I look at all of the 5-4 decisions in the Supreme Court,

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and it's kind of a joke, but people have differences of

opinion. It happens. You know, we believe that there are

objectively correct answers. You believe there's an

objectively correct answer, which you've described in your

papers, and that Mr. Perens is actually wrong. Others

disagree. There's the robust discussion. And people have

different opinions all the time, including experts in

litigation.

And so to hold somebody to perfection, to actually correct

answers, in a landscape that's capable of disagreement --

it's -- for -- it doesn't -- it seems a high standard and a

dangerous standard, given the First Amendment, to hold somebody

to.

MR. CHHABRA: But Your Honor, subject-matter experts

have always been held to a higher standard, because their word

is going to be treated as a matter of fact.

My word probably wouldn't matter, if I were to comment

about Open Source. And I've been using Open Source, myself,

for years. But I'm not an expert. My words don't matter.

But Mr. Perens' words, for our speaker, who is the average

community member who uses Open Source -- they will be persuaded

by those arguments. They would consider them to be true.

And, Your Honor, the Wilbanks case, the Overstock case --

both focus on that part. Specialized knowledge is something to

which both cases have actually quoted on, and said that they

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will be held to a higher standard; and they should be.

THE COURT: Okay. I understand the argument.

You know, I think that, you know, subject-matter expertise

commented with -- you know, this is Overstock. And again, I'm

grossly overcharacterizing the case, which I read, you know,

straight through, rather than super slowly, is essentially

self-dealing, potentially, or dealing on behalf of others in a

way that's unfair, and taking advantage of your subject-matter

expertise. It's a different situation.

I think that when you know things, you're, of course, held

to the standard of your knowledge. Right? That's just the

idea behind the, you know, subject-matter expertise. You're

held to a higher standard.

But it still strikes me as a difficult role under the sort

of First Amendment analysis to hew to in a context where you're

basically saying no reasonable mind could ever disagree.

Right? Is that what you're saying?

MR. CHHABRA: Well, Your Honor, that's not --

Your Honor, the statements which were made were directed

towards one particular business -- to the clients of one

particular business. And they were basically --

And if we use the totality-of-the-circumstances test, they

were basically saying, Hey, this company is doing some

practices which might [sic] be violation of the GPL -- or

actually, you know, not "might," but they are in violation of

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the GPL. And you would probably -- or there's a good risk that

you will be held liable.

What do those statements mean?

Those statements can only mean one thing; that, hey, if

you keep on doing business with this person, you can get in

trouble.

And -- and for my -- you know, in -- in the -- and I

appreciate you accommodating the supplemental points and

authorities, but --

THE COURT: I did -- I did get your filing last

night. So that was good. I thought -- I thought to check ECF.

That was good. Okay.

MR. CHHABRA: And, Your Honor --

MS. HANSEN: Thank you. I appreciate it.

MR. CHHABRA: And, Your Honor, there we -- you know,

it's clear how the Court is actually analyzing things that are

what the person -- who the reader is going to believe in such

situations.

Average Open Source user does not know the law. That's

where Mr. Perens and his expertise comes in play. He is a

subject-matter expert. He has done CLEs for lawyers. There's

no doubt he's a recognized expert. And they actually admit

he's an expert. And, Your Honor, their response actually

baffles me, because they're trying to negate the whole

situation that Mr. Perens is just one individual. Your Honor,

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ER 297

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PROCEEDINGS

Mr. Perens -- people take his word as true. And that, itself,

is -- is very important to consider in this case.

Regarding their concerns about Coastal, Your Honor, I have

actually had time to think about this whole thing. And Coastal

specifically was about --

THE COURT: So you read 500 cases, after all. Right?

Didn't you tell me that in your thing?

MR. CHHABRA: Yes, Your Honor.

THE COURT: That's a lot of work.

MR. CHHABRA: And the reason they hinge on only one

case: Coastal. And, Your Honor, Coastal is for a layperson's

standard, and does not apply in Mr. Perens' case. And that's

the reason why, actually, they didn't bother going through

their -- the cases, which they say I did not even talk about in

my opposition, because it was immaterial.

THE COURT: Okay. All right. I understand.

So response. Any response?

MS. HANSEN: Yes. Thank you, Your Honor.

And we appreciate you taking the time to read our response

last night. And your Order was helpful.

THE COURT: Yeah. I just said, No. I thought to

myself, Oh, dear.

MS. HANSEN: Thank you.

THE COURT: I didn't really pick up on this

procedural issue.

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ER 298

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MS. HANSEN: We appreciate that. Thank you.

Obviously, we disagree. This is a case that plaintiffs

have brought to win a public argument with Mr. Perens, because

they disagree with him and they disagree with his conclusions

regarding their practices. And those underlying practices

aren't disputed.

That's why this is a classic anti-SLAPP case, and

particularly one involving opinions, because it's not disputed

what their terms are -- OSS's terms are -- that place certain

consequences for redistribution rights for their users.

It's not disputed what paragraph 6 of GPL Version 2 says

about how those who were distributing software under Open

Source should not place such additional restrictions.

What's disputed is how Mr. Perens applied that contract to

those facts to reach an opinion about a murky issue of law that

is unsettled. And this is exactly what anti-SLAPP was meant to

address.

And here -- and these are even the classic causes of

action. So in the Wilbanks case it talks about how, when

people bring anti-SLAPP motions, they bring them as defamation

claims and business works, just like the ones here. And those

are -- and those are the classic causes of actions that are

coming up in every case.

And plaintiff's goal -- their sole goal -- is to win the

debate, and to shut up people like Mr. Perens, who disagree

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ER 299

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with them.

And I think there's something really revealing about how

much they're emphasizing that he's an expert, because one of

the reasons why plaintiffs have a problem with Mr. Perens, and

not the hundreds of other commenters on Slashdot, many of whom

held the same opinion, some of whom he was responding to, is

because they want to pick out a big target, someone who is

respected in the Open Source community, and bring him down, so

that others in the Open Source community will be more reluctant

to criticize their practices in the future. And that's not

allowed under the law. That's what anti-SLAPP is for. And --

THE COURT: I think probably the reach is a little

more modest, just because his opinion matters so much, it hurt

this niche market to the point -- I can't remember. I mean, I

looked at it last night.

MS. HANSEN: It's not a niche market, Your Honor.

This is part of the problem. The -- Slashdot -- as the First

Amended Complaint acknowledges, Slashdot, itself, has

3.2 million unique visitors per month.

As they acknowledge in the First Amended Complaint, this

doesn't just affect the customers; it affects thousands of

others, according to them, who are colleagues. Professional to

market.

They also cite -- and if you look at all of the exhibits

to the Complaint, you'll see this. This isn't just about

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Grsecurity's particular patch. It's about how this fits into

the overall Open Source debate about whether and when you can

place such restrictions on redistribution.

And plaintiffs, themselves, have pointed to other expert

opinions regarding different restrictions: Red Hat, and

others. And if you look at Mr. Perens' accused post, it also

talks about other practices that he finds more acceptable. And

in the Slashdot debates, those were brought in, as well.

The GPL is the most commonly used openly -- Open Source

agreement. It is recommended by the Department of Defense.

There is no question that, whether individuals can place

these kinds of redistributions and violate basic policies

affects --

THE COURT: I understand. I mean, that's your --

MS. HANSEN: -- many more people.

THE COURT: That's your public-interest argument, and

that's a good one.

MS. HANSEN: Yes.

THE COURT: So I understand. I understand.

I'm just saying that the concern is: They had a business

impact because of the statement of somebody who was trusted and

everybody believed, because he's an expert. And it hurt --

MS. HANSEN: Yeah.

THE COURT: -- their business model. And that's why

they're upset.

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MS. HANSEN: Yeah.

THE COURT: And they're probably less concerned with

Mr. Perens' overall platform, than the effect on their

particular business. That's the reality of this litigation.

They hope to win the debate by winning in court, because you

thought you had a pretty good argument that he was wrong. And

there -- because he's an expert, you ought to think of that as

defamation. And it's -- so I understand the argument.

MS. HANSEN: And --

THE COURT: And I am with you on the opinion

argument.

MS. HANSEN: Yeah.

MR. CHHABRA: Your Honor, may I --

MS. HANSEN: Okay.

MR. CHHABRA: -- the record?

THE COURT: You'd better let her finish first.

MR. CHHABRA: Sure. Sure.

THE COURT: And then we'll move on.

MS. HANSEN: On the expert point, it's frustrating to

here Mr. Chhabra admit that he did not read the cases that he

cited, because he did not need to search through --

THE COURT: He said -- he didn't say he didn't read

them. He said -- I believe he probably read a ridiculous

number of cases, when he told me --

MS. HANSEN: He said he did not read the ones that we

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talked about.

THE COURT: He said he did not address the ones -- I

think is what he said --

MR. CHHABRA: Yes.

THE COURT: -- because he didn't think he had to,

because he thought they were distinguishable because they were

layperson cases.

MS. HANSEN: Well, if he read them, he would know

that they're not.

THE COURT: Okay.

MS. HANSEN: So, for example, Amaretto was one where

the material was posted by an attorney who cited also Metro,

which was opinions written by attorneys. Coastal Abstract,

itself, while it didn't address the notion of -- it didn't

define what a layperson is, but the speaker in there was a

title insurance company. It's no individual layperson spouting

about --

In Freecycle, while the person there was not an attorney,

they had advised on the trademark issue.

THE COURT: No, no, no. I -- yeah. So you're saying

all of these people had subject-matter expertise --

MS. HANSEN: They all had --

THE COURT: -- that --

MS. HANSEN: Expertise.

THE COURT: -- that informed their opinions in a way

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that the case --

MS. HANSEN: Including lawyers talking about legal

issues.

THE COURT: Right.

MS. HANSEN: And what all of the expert cases turn on

is not -- when they talk about expertise, they talk about it in

the context of, Does the expertise lead people to believe that

there is some other fact that is influencing the opinion?

And that was true in Wilbanks. And it's true in every

other case where -- where a statement was found actionable.

And state -- and remains true that statement are not actionable

where it's a matter of public debate or -- and you fully

disclose your facts.

THE COURT: Exactly. And the idea -- the -- the --

the intimation that undisclosed facts support your opinion, and

that people are going to trust it and then be misled by it --

that's not the kind -- that's not the situation --

MS. HANSEN: Yeah.

THE COURT: -- that you -- that you contend exists

here.

MS. HANSEN: And, Your Honor --

THE COURT: So I understand your argument.

MS. HANSEN: In Franklin, Amaretto, all those cases,

they emphasize the freedom to agree or disagree, which is

something that can't be more evident --

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PROCEEDINGS

THE COURT: Or change your mind.

MS. HANSEN: Or change your mind.

-- which is something that can't be more evident in the --

in the responses that occurred here, and in Mr. Perens' own

posts, where he says, This is my opinion. I'm not an attorney.

You decide. Here it is.

THE COURT: Okay. So I understand the argument.

Did you want to raise -- did you want to say something?

It looked like you wanted to say something.

MR. CHHABRA: Yes, Your Honor.

So, first of all, the niche market is about --

THE COURT: Forty-five customers.

MR. CHHABRA: -- kernel patches as regards to

security comes to kernel patching; not about Slashdot; not

about the 3.2 million viewers.

Slashdot is an open forum, just like Reddit, just like

Yelp! People post a lot of things there. And it's an

aggregator.

Regarding Amaretto and Franklin, Your Honor, clearly the

Court went ahead and said --

By the way, I did read them.

The Court said that because the underlying facts were

disclosed, and because there were actually layperson's opinion

was -- and even for copyright laws to be applied, and how the

Court said that, likewise, by linking to the chat and letter,

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ER 305

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PROCEEDINGS

Ozimals gave its blog readers additional context to decide

whether to accept or reject Ozimals' opinions based on their

own independent evaluations. We're talking about laypersons.

Here, Mr. Perens has specifically -- Your Honor, and the

First Amended Complaint, on -- on paragraph 49, I list nine

phrases which were -- which we consider are defamatory.

In the morning I was -- I decided, like, they can easily

group them in three different categories.

First one would be about a potential contributory

infringement, and breach-of-contract risk for customers.

That's going to be 49, and bullet points with 1, 2, 6, 7, 8,

and 9.

Second group would be 3 and 4, which is -- my

understanding from several reliable sources is that customers

are verbally or otherwise warned. It's with what else they

told their customers. It doesn't even need to be in writing.

I have witnesses.

THE COURT: And then there was the amended blog posts

the next day, in the context of the actual --

MR. CHHABRA: Correct.

THE COURT: -- agreement. So I definitely understand

the argument. Just so you know, I outlined your Complaint.

That's how I -- that's how I --

MR. CHHABRA: Please, Your Honor.

THE COURT: Yeah.

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MR. CHHABRA: So the third was: GPL Version 2,

Section 6 explicitly prohibits the addition of terms, such as

this redistribution prohibition. So, Your Honor, three

different groups. Each group can, by itself, be held

defamatory.

And the reason why I said I wanted Mr. Perens'

declaration: Because in his declaration he does not even

mention about any witnesses.

There's one blog post -- or not blog post. I'm sorry. An

e-mail list from listserv on daemon from an anonymous person

called "a concerned false death" (phonetic), whoever that

person is. There is no identity of this person, and they have

not even identified that person. In fact, Mr. Perens does not

even talk about any reliable witnesses.

So -- but with that, Your Honor, I think I've made all my

points.

THE COURT: Good. No. Thank you. You have.

So -- and the -- did you want to -- looks like you want to

say something.

MS. HANSEN: Yes, Your Honor.

THE COURT: I saw something.

MS. HANSEN: And I apologize.

THE COURT: That's okay. It's a big calendar.

MS. HANSEN: So on the extra point, I think we would

just add we want -- we want knowledgeable people to be engaged

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in public debates. We do not want to discourage people with

knowledge from participating.

And having knowledge does not change the nature of the

statement here into one that can be -- that is susceptible to

being proven true or false, because in order to prove this

statement true or false, the Court would have to engage in a

long process of determining whether this does, in fact, violate

the GPL.

This is exactly the issue that was addressed in Amaretto

with respect to the copyright-infringement claims there. It's

been addressed in a breach-of-contract context.

Even having done all that, if we get to a trial, and we

got to the end, and you said, You know what? I think this

doesn't violate the GPL -- or a jury did -- that still --

THE COURT: That doesn't matter. That doesn't

matter.

MS. HANSEN: It wouldn't matter.

THE COURT: Yeah.

MS. HANSEN: And -- and -- and I think that's the

point of Coastal Abstract, more than the expertise or layperson

point. And if you think about it, there are certain

non-laypeople who can make facts a gloss, such as the -- the

taxi group that was mentioned in Coastal Abstract. If a

municipal body says, This statute applies to you, or says, You

need a license, that has the effect of fact, but no -- other

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people don't have that power.

So I didn't know if you wanted to hear from us about the

proposal on AER and amendment.

THE COURT: Sure.

MS. HANSEN: Okay. I mean, I think you can probably

guess where -- we would not be happy about it, because --

THE COURT: I wouldn't have forced it. I would just

ask if you wanted it, and ask you to talk about it.

MS. HANSEN: Yes.

THE COURT: Because I think, you know, again, I just

wonder if conversation might sort of settle the landscape of

angst.

MS. HANSEN: And understood, Your Honor. And I guess

to provide some context, we have provided the opportunity for

that -- that conversation. And at the original --

THE COURT: Okay.

MS. HANSEN: -- case-management conference, we opened

up that possibility. And there just does not seem to be any

way that would be acceptable to resolve this case. And, in

part --

THE COURT: It would be in the context of an order

that I'd issue, which might change the --

MS. HANSEN: Sure, but --

THE COURT: Might change things.

MS. HANSEN: What resolution is possible? Because,

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Your Honor, they -- the plaintiffs have viewed this as a game

to win. And -- including in bringing a First Amended

Complaint, including in bringing a Motion for Partial Summary

Judgment, just to get declarations out. And they -- they view

this as a debate to win. They refuse to listen to reason about

the nature of their claims.

THE COURT: So -- so understanding that litigated

context, the only thing I offer is this. There can, of course,

be the economic realities of settlement; not because you're not

right, but because of -- but that may or may not be an issue

here, but that's --

MS. HANSEN: Mm-hm.

THE COURT: -- an issue.

More often than not, when real people get together -- not

that lawyers aren't real people. But when real people get

together in the room and actually talk about what happened,

people's interests are so much different than their litigated

positions. And sometimes when you have that conversation --

it's happened in a substantial percentage of my cases; often

business disputes, but sometimes other cases, where people sort

of come to peace with the landscape of the problem --

MS. HANSEN: Mm-hm.

THE COURT: -- and agree that litigation isn't the

right approach.

So I also -- you know, I have this thing that I say. If

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we don't talk with each other and listen, we're doomed to die

together as fools. I copied it from Martin Luther King's

speech in Overland in, like, '67 or something.

But I think it's such a great thing to think about,

because something happened in the real world which is

relatively -- it's very important to your client, but it's

relatively, probably, modest for Mr. Perens --

MS. HANSEN: I would --

THE COURT: -- in the scope of things. I mean, it

matters to him here because it's no fun to be sued, and it

implicates everything he stands for, so I'm not saying that.

I'm just saying that -- that, you know, in -- had there

not been a lawsuit, it would have been a blip in many

conversations he has on many subjects. So I just --

MS. HANSEN: And that was their choice, Your Honor.

THE COURT: Yeah.

MS. HANSEN: And it was their choice to force him to

incur what are now substantial attorneys' fees.

THE COURT: No. I understand.

MS. HANSEN: It's a serious matter.

THE COURT: No. I understand. Okay. So the

matter's submitted. Thank you very much for your argument.

MR. CHHABRA: Thank you, Your Honor.

THE COURT: Okay.

(At 10:57 a.m. the proceedings were adjourned.)

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ER 311

CERTIFICATE OF REPORTER

I certify that the foregoing is a true and correct

transcript, to the best of my ability, of the above pages of

the official electronic sound recording provided to me by the

U. S. District Court, Northern District of California, of the

proceedings taken on the date and time previously stated in the

above matter.

I further certify that I am neither counsel for, related

to, nor employed by any of the parties to the action in which

this hearing was taken; and, further, that I am not financially

nor otherwise interested in the outcome of the action.

_______________________________December 21, 2017

Signature of Transcriber Date

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3:17-CV-04002-LB

PLAINTIFFS’ NOTICE OF INTENT NOT TO FILE AN AMENDED COMPLAINT





) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB PLAINTIFFS OPEN SOURCE SECURITY, INC. AND BRADLEY SPENGLER’S NOTICE OF INTENT NOT TO FILE AN AMENDED COMPLAINT Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler


ER 313

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-1- 3:17-CV-04002-LB

PLAINTIFFS’ NOTICE OF INTENT NOT TO FILE AN AMENDED COMPLAINT

TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs Open Source Security and Bradley Spengler currently do

not intend to file a Second Amended Complaint in this action, but will stand upon the existing pleading

and appeal the Court’s December 21, 2017 Order to the Court of Appeals for the Ninth Circuit. To that

end, Plaintiff respectfully requests that a judgment of dismissal without prejudice be entered in this

action, pursuant to the Court’s December 21 Order.

Date: January 18, 2017



s/Rohit Chhabra

Rohit Chhabra

Attorney for Plaintiffs Open Source Security Inc. & Bradley Spengler


ER 314

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3:17-CV-04002-LB

Plaintiffs’ Ex parte Motion to Enter Judgment





) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB Plaintiffs’ Ex Parte Motion to Enter Final Judgment; and Rohit Chhabra’s Declaration Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler


ER 315

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-1- 3:17-CV-04002-LB


December 21, 2017 this Court granted Defendant’s Motion to Dismiss Plaintiffs’ complaint

under Fed. R. Civ. P. 12 (b) (6), with leave to amend. On January 18, 2018, Plaintiffs’ filed a Notice of

Intent Not to Amend Complaint requesting the Court to enter judgment and dismiss the complaint

without prejudice so that Plaintiffs could appeal the matter. On January 19, 2018, the Court indicated

that to appeal, the case should be dismissed with prejudice. The Court also directed the parties to

confer a proposed judgment. Accordingly, the parties conferred on January 22, 2018. Plaintiffs

expressed their desire to file this ex parte motion and proposed judgment on January 22, 2018, and

therefore the parties were unable to reach a full agreement on the form or content of the proposed

judgment.

Plaintiffs’ submit a proposed Order herewith.

Points and authorities

Even if plaintiffs have requested the court to dismiss the case without prejudice, as long as they

notify their intent to appeal a matter, the court should dismiss the case with prejudice. Concha v.

London, 62 F. 3d 1493, 1508-09 (9th Cir. 1995) (stating that when it is apparent that plaintiffs would

have absolutely nothing to gain by filing a voluntary dismissal without prejudice, and when plaintiff

specifically expresses a desire a dismissal preserving its right to appeal, the dismissal should be

considered with prejudice, even if does not expressly state so.)

Further, “under Ninth Circuit precedent, when a plaintiff fails to amend his complaint after the

district court dismisses the complaint with leave to amend, the dismissal is typically considered a

dismissal for failing to comply with a court order rather than for failure to prosecute a claim.” Edwards

v. Marin Park, Inc., 356 F. 3d 1058, 1064 (9th Cir. 2004), citing Yourish v. California Amplifier, 191

F. 3d 983 (9th Cir. 1999); Also see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). However,

“[a] Rule 12(b)(6) dismissal [ferments] into a Rule 41(b) dismissal only upon a plaintiff's inaction.

When the plaintiff timely responds with a formal notice of his intent not to amend, the threatened

dismissal merely ripens into a final, appealable judgment.” Edwards at 1065, citing WMX

Technologies, Inc. v. Miller, 104 F. 3d 1133 (9th Cir. 1997). Following such a notice, the district court


ER 316

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-2- 3:17-CV-04002-LB


should consider the election not to amend at face value and enter a final judgment dismissing all claims

with prejudice. Id. at 1064 (italics added). The dismissal should be under Rule 12(b)(6). Id. at 1065.

Plaintiffs’ Position

Here since Plaintiffs, on January 18, 2018, have expressly elected not to amend the complaint a

Fed. R. Civ. P. 41(b) sanctioned dismissal is not warranted and the Court should instead dismiss the

case under Fed. R. Civ. P.12 (b)(6), pursuant to its December 21, 2017 Order. Further, since Plaintiffs

have expressly stated their intention not to file an amended complaint so that they can appeal the

matter, even if Plaintiffs have incorrectly requested that the matter be dismissed without prejudice, the

court should still enter final judgment dismissing the matter with prejudice. Such a dismissal cannot be

deemed voluntary under Fed. R. Civ. P. 41(a) (1) or (a) (2), as Plaintiffs clarify that they do not wish to

voluntarily dismiss the complaint.

Therefore, the Court is requested to sua sponte, based on Plaintiffs’ Notice of Intent Not to File

an Amended Complaint, enter final judgment to dismiss the complaint with prejudice, pursuant to its

December 21 Order under Fed. R. Civ. P. 12(b)(6) so that Plaintiffs’ can appeal the matter. Plaintiffs

agree that Defendant should be deemed the prevailing party for the purposes of awarding attorneys’

fees and costs pursuant to California’s anti-SLAPP statute, pursuant to the Court’s December 21, 2017

Order.

Defendant Bruce Perens’s position

The Parties have conferred as the Court instructed on January 19, 2018 (ECF No. 56).

Plaintiffs desired to file their motion on January 22, 2018. While this timing did not allow the Parties

to reach an agreement on the form and content of Plaintiffs’ motion, Defendant agrees that a dismissal

with prejudice is appropriate. Defendant also agrees that Defendant should be deemed the prevailing

party for the purposes of awarding attorneys’ fees and costs, that the Court retains jurisdiction to

determine collateral issues including fees and costs, and that the Parties will submit a proposed briefing

schedule. Defendant also preserves all rights to recover fees related to any appeal.


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-3- 3:17-CV-04002-LB


Plaintiffs’ Proposed Order:

Plaintiffs’ have filed a notice of intent to not file an amended complaint and expressed a desire

to appeal this matter. Based on the notice, the Court dismisses the case with prejudice under Fed. R.

Civ. P. 12(b)(6). See Edwards v. Marin Park, Inc., 356 F. 3d 1058 (9th Cir. 2004); Also see Concha v.

London, 62 F. 3d 1493 (9th Cir. 1995). Based on the Court’s December 21, 2017 Order, Defendant's

motion to strike pursuant to California's anti-SLAPP statute is deemed granted and the Court deems

Defendant the prevailing party for the purposes of awarding mandatory attorneys’ fees and costs. The

Court retains jurisdiction to determine collateral issues including fees and costs permitted under

California's anti-SLAPP statute. The Parties will submit a stipulated briefing schedule for motions

related to fees and costs.

It is so Ordered.

Date: January 22, 2018



s/Rohit Chhabra

Rohit Chhabra

Attorney for Plaintiffs Open Source Security Inc. & Bradley Spengler


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3:17-CV-04002-LB

PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT






) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT APPEAL FROM FINAL JUDGMENT Location: Courtroom C, 15th Floor Judge: Hon. Laurel Beeler


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-1- 3:17-CV-04002-LB


NOTICE OF APPEAL – FROM FINAL JUDGMENT

NOTICE IS HEREBY GIVEN that Open Source Security Inc. and Bradley Spengler,

plaintiffs in the above-named case, hereby appeal to the United States Court of Appeals for the Ninth

Circuit from final judgment in favor of Defendant Bruce Perens entered in this action on the 24th day

of January, 2018 (ECF No. 58), attached hereto as Exhibit A, pursuant to the Court’s order granting

Defendant Perens’s Motion to dismiss pursuant to Fed. R. Civ. P. 12 (b)(6), dated December 21, 2017

(ECF No. 53), attached hereto as Exhibit B.

Plaintiffs’ Representation Statement is attached to this Notice as required by Ninth Circuit Rule

3-2(b).

Date: February 5, 2018



s/Rohit Chhabra

Rohit Chhabra


Open Source Security Inc. & Bradley Spengler


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-2- 3:17-CV-04002-LB


REPRESENTATION STATEMENT

The undersigned represents Plaintiffs-Appellants Open Source Security Inc. and Bradley

Spengler. Pursuant to Rule 12(b) of the Federal Rules of Appellate Procedure and Circuit Rule 3-2(b),

Plaintiffs-Appellants submit this Representation Statement. The following list identifies all parties to

the action, as known at this time, and it identifies their respective counsel by name, firm, address,

telephone number, and e-mail, where appropriate.

PARTIES COUNSEL OF RECORD

PLAINTIFFS-APPALLANTS

OPEN SOURCE SECURITY INC. and BRADLEY SPENGLER

CHHABRA LAW FIRM, PC ROHIT CHHABRA (SBN 278798) 257 Castro Street Suite 104 Mountain View, CA 94041 Telephone: (650) 564-7929 Email: [email protected]

DEFENDANTS-APPELLEES

BRUCE PERENS

MELODY N DRUMMOND HANSEN [email protected] HEATHER JANINE MEEKER [email protected] O'MELVENY AND MYERS LLP 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: +1 650 473 2600 CARA LORRAINE GAGLIANO O MELVENY AND MYERS LLP [email protected] 2 Embarcadero Center 28th Floor San Francisco, CA 94111 Telephone: +1 415 984 8700


s/Rohit Chhabra

Rohit Chhabra


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-3- 3:17-CV-04002-LB






) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:17-cv-04002-LB CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED THAT:

I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business

address is 257 Castro Street Suite 140 Mountain View California, 94041.

I am not a party to the above-entitled action. I have caused service of:


APPEAL FROM FINAL JUDGMENT

on the other party by electronically filing the foregoing with the Clerk of the U. S. Dist. Court using its

CM/ECF System, which electronically notifies Defendant Bruce Perens and his counsel of record, as

follows:

MELODY N DRUMMOND HANSEN [email protected] HEATHER JANINE MEEKER [email protected], [email protected] 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: +1 650 473 2600

CARA LORRAINE GAGLIANO [email protected] 2 Embarcadero Center 28th Floor San Francisco, CA 94111 Telephone: +1 415 984 8700

I declare under penalty of perjury that the foregoing is true and correct. Executed on February 5, 2018

s/Rohit Chhabra

Rohit Chhabra



ER 322

ADRMOP,APPEAL,CLOSED,CONSENTU.S. District Court

California Northern District (San Francisco)CIVIL DOCKET FOR CASE #: 3:17−cv−04002−LB

Open Source Security, Inc. v. PerensAssigned to: Magistrate Judge Laurel BeelerDemand: $3,000,000Case in other court: 9th Circuit, 18−15189Cause: 28:1332 Diversity−Libel,Assault,Slander

Date Filed: 07/17/2017Date Terminated: 01/24/2018Jury Demand: PlaintiffNature of Suit: 320 Assault Libel &SlanderJurisdiction: Diversity

Plaintiff

Open Source Security, Inc.A Pennsylvania Corporation

represented byRohit ChhabraChhabra Law Firm257 Castro St Suite 104Mountain View, CA 94041650−564−7929Email: [email protected] TO BE NOTICED

Plaintiff

BRADLEY SPENGLER represented byRohit Chhabra(See above for address)ATTORNEY TO BE NOTICED

V.

Defendant

Bruce Perens represented byHeather Janine MeekerO'Melveny & Myers LLP2765 Sand Hill RoadMenlo Park, CA 94025(650) 473−2635Fax: 650−473−2601Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Melody N Drummond HansenO'Melveny and Myers LLP2 Embarcadero Center28th FloorSan Francisco, CA 94111−3823415−984−8700Fax: 415−984−8701Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Cara Lorraine GaglianoO Melveny and Myers LLP2 Embarcadero Center28th FloorSan Francisco, CA 94111(415) 984−8700Fax: (415) 984−8701Email: [email protected] TO BE NOTICED

Case: 3:17-cv-04002-LB As of: 06/12/2018 04:10 PM PDT 1 of 10

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mailto:[email protected]




Date Filed # Docket Text

07/17/2017 1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number0971−11550172.). Filed byOpen Source Security, Inc.. (Attachments: # 1 ExhibitExhibits A−E, # 2 Civil Cover Sheet)(Chhabra, Rohit) (Filed on 7/17/2017) (Entered:07/17/2017)

07/17/2017 2 Proposed Summons. (Chhabra, Rohit) (Filed on 7/17/2017) (Entered: 07/17/2017)

07/17/2017 3 Case assigned to Magistrate Judge Laurel Beeler.

Counsel for plaintiff or the removing party is responsible for serving the Complaint orNotice of Removal, Summons and the assigned judge's standing orders and all othernew case documents upon the opposing parties. For information, visit E−Filing A NewCivil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page atwww.cand.uscourts.gov/judges. Upon receipt, the summons will be issued andreturned electronically. Counsel is required to send chambers a copy of the initiatingdocuments pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice ofElectronic Filing (NEF) within two business days. Consent/Declination due by7/31/2017. (jmlS, COURT STAFF) (Filed on 7/17/2017) (Entered: 07/17/2017)

07/17/2017 4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by OpenSource Security, Inc... (Chhabra, Rohit) (Filed on 7/17/2017) (Entered: 07/17/2017)

07/19/2017 5 Initial Case Management Scheduling Order with ADR Deadlines: CaseManagement Statement due by 10/12/2017. Initial Case Management Conferenceset for 10/19/2017 11:00 AM in Courtroom C, 15th Floor, San Francisco. (farS,COURT STAFF) (Filed on 7/19/2017) (Entered: 07/19/2017)

07/19/2017 6 Summons Issued as to Bruce Perens. (farS, COURT STAFF) (Filed on 7/19/2017)(Entered: 07/19/2017)

08/11/2017 7 WAIVER OF SERVICE Returned Executed filed by Open Source Security, Inc..Service waived by Bruce Perens waiver sent on 7/18/2017, answer due 9/18/2017.(Chhabra, Rohit) (Filed on 8/11/2017) (Entered: 08/11/2017)

09/18/2017 8 NOTICE of Appearance by Melody N Drummond Hansen / Notice of Appearance ofCounsel for Defendant Bruce Perens Pursuant to Civil L.R. 5−1(C)(2) (DrummondHansen, Melody) (Filed on 9/18/2017) (Entered: 09/18/2017)

09/18/2017 9 NOTICE of Appearance by Heather Janine Meeker / Notice of Appearance of Counselfor Defendant Bruce Perens Pursuant to Civil L.R. 5−1(C)(2) (Meeker, Heather)(Filed on 9/18/2017) (Entered: 09/18/2017)

09/18/2017 10 NOTICE of Appearance by Cara Lorraine Gagliano / Notice of Appearance of Counselfor Defendant Bruce Perens Pursuant to Civil L.R. 5−1(C)(2) (Gagliano, Cara) (Filedon 9/18/2017) (Entered: 09/18/2017)

09/18/2017 11 MOTION to Dismiss / Defendant Bruce Perens's Notice of Motion and Motion toDismiss with Prejudice Pursuant to Fed. R. CIV. P. 12(b)(6) and Special Motion toStrike Pursuant to the California Anti−Slapp Statue, Code of Civil Procedure Section425.16; Memorandum of Points and Authorities in Support Thereof; and Declarationof Melody Drummond Hansen in Support Thereof filed by Bruce Perens. MotionHearing set for 10/26/2017 09:30 AM in Courtroom C, 15th Floor, San Franciscobefore Magistrate Judge Laurel Beeler. Responses due by 10/2/2017. Replies due by10/10/2017. (Attachments: # 1 Declaration of Melody Drummond Hansen in Support,# 2 Exhibit A to the Drummond Hansen Declaration, # 3 Proposed Order)(DrummondHansen, Melody) (Filed on 9/18/2017) (Entered: 09/18/2017)

09/18/2017 12 Request for Judicial Notice re 11 MOTION to Dismiss / Defendant Bruce Perens'sNotice of Motion and Motion to Dismiss with Prejudice Pursuant to Fed. R. CIV. P.12(b)(6) and Special Motion to Strike Pursuant to the California Anti−Slapp Statue,Code of Civil Procedure Section filed byBruce Perens. (Attachments: # 1 Exhibit 1, # 2Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Related document(s) 11 ) (DrummondHansen, Melody) (Filed on 9/18/2017) (Entered: 09/18/2017)


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https://ecf.cand.uscourts.gov/doc1/035015669224?caseid=314338&de_seq_num=3&pdf_header=1&pdf_toggle_possible=1






















09/18/2017 13 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by BrucePerens.. (Drummond Hansen, Melody) (Filed on 9/18/2017) (Entered: 09/18/2017)

09/18/2017 14 Certificate of Interested Entities by Bruce Perens / Certificate of Interested Entities orPersons (L.R. 3−15) (Drummond Hansen, Melody) (Filed on 9/18/2017) (Entered:09/18/2017)

09/22/2017 15 STIPULATION WITH PROPOSED ORDER for Continuing Case ManagementConference and ADR Deadlines filed by Open Source Security, Inc.. (Chhabra, Rohit)(Filed on 9/22/2017) (Entered: 09/22/2017)

09/23/2017 Initial Case Management Conference set for 11/30/2017 11:00 AM in CourtroomC, 15th Floor, San Francisco.

The attached order grants the parties' stipulation at ECF No. 15 and resets the initialcase−management conference to 11/30/2017 at 11:00 a.m. The initialcase−management statement now is due no later than 11/22/2017 (given thatThanksgiving is on 11/23/2017).

(Beeler, Laurel) (Filed on 9/23/2017) (Entered: 09/23/2017)

09/23/2017 16 Order granting 15 Stipulation entered by Laurel Beeler. (This is a text−only entrygenerated by the court. There is no document associated with this entry.) (Entered:09/23/2017)

09/29/2017 17 First MOTION for Joinder of Bradley Spengler as co−plaintiff filed by Open SourceSecurity, Inc.. (Attachments: # 1 Affidavit Declaration of Bradley Spengler, # 2Proposed Order)(Chhabra, Rohit) (Filed on 9/29/2017) (Entered: 09/29/2017)

10/02/2017 18 AMENDED COMPLAINT (First) against Bruce Perens. Filed byOpen SourceSecurity, Inc., BRADLEY SPENGLER. (Attachments: # 1 Exhibit Ex.1−12)(Chhabra, Rohit) (Filed on 10/2/2017) (Entered: 10/02/2017)

10/02/2017 19 Second MOTION for Joinder (Rule 20) to join Bradley Spengler as co−plaintiff, basedon First Amended Complaint filed by Open Source Security, Inc., BRADLEYSPENGLER. (Chhabra, Rohit) (Filed on 10/2/2017) (Entered: 10/02/2017)

10/02/2017 20 OPPOSITION/RESPONSE (re 11 MOTION to Dismiss / Defendant Bruce Perens'sNotice of Motion and Motion to Dismiss with Prejudice Pursuant to Fed. R. CIV. P.12(b)(6) and Special Motion to Strike Pursuant to the California Anti−Slapp Statue,Code of Civil Procedure Section ) filed byOpen Source Security, Inc., BRADLEYSPENGLER. (Attachments: # 1 Affidavit Declaration of Bradley Spengler, # 2Proposed Order)(Chhabra, Rohit) (Filed on 10/2/2017) (Entered: 10/02/2017)

10/10/2017 21 Notice of Withdrawal of Motion Notice of Withdrawal of Motion to Dismiss andSpecial Motion to Strike as Moot (Drummond Hansen, Melody) (Filed on 10/10/2017)(Entered: 10/10/2017)

10/11/2017 22 Order terminating 17 Motion for Joinder entered by Magistrate Judge LaurelBeeler. (This is a text−only entry generated by the court. There is no documentassociated with this entry.) (Entered: 10/11/2017)

10/11/2017 23 STIPULATION (Joint Stipulation Under Civil L.R. 6−1(a) Extending DefendantBruce Perens's Time to Respond to the First Amended Complaint) filed by BrucePerens. (Drummond Hansen, Melody) (Filed on 10/11/2017) (Entered: 10/11/2017)

10/11/2017 24 First MOTION for Partial Summary Judgment /Plaintiffs' notice of motion filed byOpen Source Security, Inc., BRADLEY SPENGLER. Motion Hearing set for11/16/2017 09:30 AM in Courtroom C, 15th Floor, San Francisco before MagistrateJudge Laurel Beeler. Responses due by 10/25/2017. Replies due by 11/1/2017.(Attachments: # 1 Proposed Order)(Chhabra, Rohit) (Filed on 10/11/2017) (Entered:10/11/2017)

10/18/2017 25 Order granting 19 Motion for Joinder entered by Magistrate Judge LaurelBeeler.

The court grants the unopposed motion for joinder of Bradley Spengler.


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(This is a text−only entry generated by the court. There is no document associatedwith this entry.) (Entered: 10/18/2017)

10/20/2017 26 MOTION to Continue (Defendant's Motion to Change Time and ContinueProceedings on Open Source Security, Inc.'s Motion for Partial Summary JudgmentPending Resolution of Defendant's Renewed Antislapp Motion and Renewed Motion toDismiss for Failure to State a Claim) filed by Bruce Perens. (Attachments: # 1Declaration of Melody Drummond Hansen, # 2 Proposed Order)(Drummond Hansen,Melody) (Filed on 10/20/2017) (Entered: 10/20/2017)

10/21/2017 27 Order deferring ruling on 26 Motion to Continue entered by Magistrate JudgeLaurel Beeler. This administrative motion requires a response under the localrules by Tuesday, 10/24/2017. The court suggests that the parties confer on aschedule. (This is a text−only entry generated by the court. There is no documentassociated with this entry.) (Entered: 10/21/2017)

10/24/2017 28 STIPULATION WITH PROPOSED ORDER re 27 Order on Motion to Continue, /Stipulated Request to set revised schedule for proceedings on Motion for PartialSummary Judgment, Anti−Slapp Motion, and Motion to Dismiss filed by Bruce Perens.(Attachments: # 1 Declaration of Melody Drummond Hansen in Support)(DrummondHansen, Melody) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/24/2017 29 Notice of Withdrawal of Motion to Change Time and Continue Proceedings 26(Drummond Hansen, Melody) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/24/2017 ORDER GRANTING PARTIES' STIPULATION AND SETTING SCHEDULE28 27 .

The court approves the parties' stipulation, which results in the following schedule. Forthe existing motion at ECF No. 24, the schedule is as follows: Opposition due10/31/2017. Replies due by 11/14/2017. For the contemplated Anti−Slapp motion, themotion will be filed on 10/31/2017, the response/opposition will be filed on11/21/2017, and the optional reply is due 11/30/2017. The hearing on all motions is setfor 12/14/2017 at 09:30 AM in Courtroom C, 15th Floor, San Francisco beforeMagistrate Judge Laurel Beeler.

(This is a text−only entry generated by the court. There is no document associatedwith this entry.) (Beeler, Laurel) (Filed on 10/24/2017) (Entered: 10/24/2017)

10/31/2017 30 MOTION to Dismiss (Defendant Bruce Perens's Notice of Motion and Special Motionto Strike the First Amended Complaint Pursuant to the California Anti−Slapp Statute,Code of Civ. Proc. Sec. 425.16, and Motion to Dismiss the First Amended Complaintwith Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6); Memorandum of Points andAuthorities in Support thereof) filed by Bruce Perens. Motion Hearing set for12/14/2017 09:30 AM in Courtroom C, 15th Floor, San Francisco before MagistrateJudge Laurel Beeler. Responses due by 11/21/2017. Replies due by 11/30/2017.(Attachments: # 1 Declaration of Melody Drummond Hansen, # 2 Exhibit A to theDeclaration of Hansen, # 3 Proposed Order)(Drummond Hansen, Melody) (Filed on10/31/2017) (Entered: 10/31/2017)

10/31/2017 31 Request for Judicial Notice re 30 MOTION to Dismiss (Defendant Bruce Perens'sNotice of Motion and Special Motion to Strike the First Amended Complaint Pursuantto the California Anti−Slapp Statute, Code of Civ. Proc. Sec. 425.16, and Motion toDismiss the First Amended Compla filed byBruce Perens. (Attachments: # 1 Exhibit 1,# 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Related document(s) 30 )(Drummond Hansen, Melody) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017 32 Brief (Defendant's Opposition to Open Source Security, Inc.'s Motion for PartialSummary Judgment 24 ) filed byBruce Perens. (Attachments: # 1 Declaration ofMelody Drummond Hansen in Support of, # 2 Exhibit A to the Declaration of Hansen,# 3 Declaration to Bruce Perens in Support of, # 4 Proposed Order)(DrummondHansen, Melody) (Filed on 10/31/2017) (Entered: 10/31/2017)

11/09/2017 33 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options by Plaintiffs OpenSource Security Inc. and Bradley Spengler (Chhabra, Rohit) (Filed on 11/9/2017)(Entered: 11/09/2017)


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11/09/2017 34 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (DrummondHansen, Melody) (Filed on 11/9/2017) (Entered: 11/09/2017)

11/09/2017 35 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Drummond Hansen,Melody) (Filed on 11/9/2017) (Entered: 11/09/2017)

11/13/2017 36 ADR Clerk's Notice Setting ADR Phone Conference on 11/28/2017 at 10:00 AMPacific time. Please note that you must be logged into an ECF account of counsel ofrecord in order to view this document. (cmf, COURT STAFF) (Filed on 11/13/2017)(Entered: 11/13/2017)

11/14/2017 37 REPLY to 32 Defendant's Opposition to Plaintiff's Motion for Partial SummaryJudgment filed by Open Source Security, Inc. (Chhabra, Rohit) (Filed on 11/14/2017)Modified on 11/15/2017 (farS, COURT STAFF). (Entered: 11/14/2017)

11/21/2017 38 OPPOSITION/RESPONSE (re 30 MOTION to Dismiss (Defendant Bruce Perens'sNotice of Motion and Special Motion to Strike the First Amended Complaint Pursuantto the California Anti−Slapp Statute, Code of Civ. Proc. Sec. 425.16, and Motion toDismiss the First Amended Compla ) filed byOpen Source Security, Inc., BRADLEYSPENGLER. (Attachments: # 1 Declaration Declaration of Bradley Spengler, # 2Proposed Order)(Chhabra, Rohit) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/22/2017 39 JOINT CASE MANAGEMENT STATEMENT filed by Open Source Security, Inc.,BRADLEY SPENGLER. (Chhabra, Rohit) (Filed on 11/22/2017) (Entered:11/22/2017)

11/24/2017 40 ADMINISTRATIVE MOTION for Leave to File a Surreply and SupplementalDeclaration filed by Bruce Perens. Responses due by 11/28/2017. (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Declaration of Melody Drummond Hansen in Support, #4 Proposed Order)(Drummond Hansen, Melody) (Filed on 11/24/2017) (Entered:11/24/2017)

11/27/2017 41 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: Due tothe pending motions, the court resets the initial CMC from 11/30/2017 to 02/08/2018at 11:00 a.m. in Courtroom C, 15th Floor, San Francisco. Case ManagementStatement due by 2/1/2018. (This is a text−only entry generated by the court. There isno document associated with this entry.) (ejkS, COURT STAFF) (Filed on11/27/2017) (Entered: 11/27/2017)

11/27/2017 42 OPPOSITION/RESPONSE (re 40 ADMINISTRATIVE MOTION for Leave to File aSurreply and Supplemental Declaration ) filed byOpen Source Security, Inc.,BRADLEY SPENGLER. (Attachments: # 1 Declaration Declaration of Rohit Chhabrain Opposition, # 2 Proposed Order)(Chhabra, Rohit) (Filed on 11/27/2017) (Entered:11/27/2017)

11/28/2017 43 ADR Remark: ADR Phone Conference held on 11/28/2017 by Tamara Lange. (cmf,COURT STAFF) (Filed on 11/28/2017) (This is a text−only entry generated by thecourt. There is no document associated with this entry.) (Entered: 11/28/2017)

11/30/2017 44 REPLY (re 30 MOTION to Dismiss (Defendant Bruce Perens's Notice of Motion andSpecial Motion to Strike the First Amended Complaint Pursuant to the CaliforniaAnti−Slapp Statute, Code of Civ. Proc. Sec. 425.16, and Motion to Dismiss the FirstAmended Compla ) / Defendant Bruce Perens's Reply Memorandum of Points andAuthorities in Support of Special Motion to Strike the First Amended ComplaintPursuant to the California Anti−Slapp Statute, Code of Civ. Proc. Sec. 425.16, andMotion to Dismiss the First Amended Complaint with Prejudice Pursuant to Fed. R.Civ. P. 12(b)(6) filed byBruce Perens. (Drummond Hansen, Melody) (Filed on11/30/2017) (Entered: 11/30/2017)

12/12/2017 45 MOTION for Leave to File (UNOPPOSED) A SUPPLEMENTAL MEMORANDUMOF POINTS & AUTHORITIES TO PLAINTIFFS OPPOSITION TO DEFENDANTSMOTION TO DISMISS AND SPECIAL MOTION TO STRIKE filed by Open SourceSecurity, Inc., BRADLEY SPENGLER. (Attachments: # 1 SUPPLEMENTALMEMORANDUM OF POINTS & AUTHORITIES TO PLAINTIFFS OPPOSITIONTO DEFENDANTS MOTION TO DISMISS AND SPECIAL MOTION TOSTRIKE)(Chhabra, Rohit) (Filed on 12/12/2017) (Entered: 12/12/2017)


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12/13/2017 46 Order granting 45 Motion for Leave to File entered by Magistrate Judge LaurelBeeler.

The court just recognized that the plaintiff's unopposed motion to file a supplementalmemo contemplated a response from the defendant. The defendant said that it "has notseen Plaintiff's proposed memorandum and requests the opportunity to file a shortresponse, if necessary." In case the defendant was waiting for court approval to fileany response, the court grants the request to file a response. (The court recognizes thatit also is possible that the lack of a response means that the defendant did not think it"necessary.") Any response should be filed as soon as is practicable else the court willnot be able to read it before the hearing.


12/13/2017 47 Brief (Defendant Bruce Perens's Response Memorandum to Plaintiffs' SupplementalPoints and Authorities in Opposition to Defendant's Motion to Dismiss and SpecialMotion to Strike 45 ) filed byBruce Perens. (Drummond Hansen, Melody) (Filed on12/13/2017) (Entered: 12/13/2017)

12/14/2017 48 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler:Motion Hearing held on 12/14/2017. Matter is taken under submission. Court willissue an order.

FTR Time: 10:26−10:57.Plaintiffs' Attorney: Rohit Chhabra.Defendant's Attorney: Melody Drummond Hansen.(This is a text−only entry generated by the court. There is no document associatedwith this entry.) (ejkS, COURT STAFF) (Date Filed: 12/14/2017) Modified on12/15/2017: Matter transcribed by Lydia Zinn (Zinn Reporting). (rjdS, COURTSTAFF). (Entered: 12/14/2017)

12/14/2017 49 AUDIO RECORDINGS ORDER (re: 48 Motion Hearing, ), by Bruce Perens. Courtwill send to Diana Diaz at [email protected] a link to the files requested in this order. (Filing fee $ 31, receipt number 0971−11954132). (Drummond Hansen, Melody) (Filedon 12/14/2017) (Entered: 12/14/2017)

12/14/2017 50 TRANSCRIPT ORDER for proceedings held on 12−14−2017 before Magistrate JudgeLaurel Beeler by Bruce Perens, for Court Reporter FTR − San Francisco. (DrummondHansen, Melody) (Filed on 12/14/2017) (Entered: 12/14/2017)

12/14/2017 51 TRANSCRIPT ORDER for proceedings held on 12−14−2017 before Magistrate JudgeLaurel Beeler by Open Source Security, Inc., for Court Reporter FTR − San Francisco.(Chhabra, Rohit) (Filed on 12/14/2017) (Entered: 12/14/2017)

12/14/2017 52 AUDIO RECORDINGS ORDER (re: 48 Motion Hearing, ), by Open Source Security,Inc.. Court will send to Rohit Chhabra at [email protected] a link to the filesrequested in this order. ( Filing fee $ 31, receipt number 0971−11954258). (Chhabra,Rohit) (Filed on 12/14/2017) (Entered: 12/14/2017)

12/21/2017 53 ORDER granting 30 Motion to Dismiss. In the attached order, the court dismissesthe complaint with leave to amend, denies the anti−SLAPP motion withoutprejudice, and denies the motion for summary judgment. The plaintiffs must fileany amended complaint by January 18, 2018. (Beeler, Laurel) (Filed on12/21/2017) (Entered: 12/21/2017)

12/21/2017 54 Transcript of Digital Audio Recording ofProceedings held on 12/14/2017, beforeJudge Laurel Beeler. Court Reporter/Transcriber Lydia Zinn, telephone number (415)531−6587. Per General Order No. 59 and Judicial Conference policy, this transcriptmay be viewed only at the Clerk's Office public terminal or may be purchased throughthe Court Reporter/Transcriber until the deadline for the Release of TranscriptRestriction. After that date it may be obtained through PACER. Any Notice of Intentto Request Redaction, if required, is due no later than 5 business days from date of thisfiling. (Re 50 Transcript Order, 51 Transcript Order ) Redacted Transcript Deadline setfor 1/22/2018. Release of Transcript Restriction set for 3/21/2018. (Relateddocuments(s) 50 , 51 ) (zinnlr62S, COURT STAFF) (Filed on 12/21/2017) (Entered:12/21/2017)


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01/18/2018 55 NOTICE by Open Source Security, Inc., BRADLEY SPENGLER OF INTENT NOTTO FILE AN AMENDED COMPLAINT (Chhabra, Rohit) (Filed on 1/18/2018)(Entered: 01/18/2018)

01/19/2018 56 The court previously dismissed the plaintiffs' claims for failure to state a claim andwith leave to amend. (ECF No. 53.) The plaintiffs have submitted a notice of intent notto file an amended complaint and have asked the court to enter a judgment of dismissalwithout prejudice. (ECF No. 55.) Ordinarily, if the plaintiffs want to appeal, ajudgment dismissing the case with prejudice is appropriate. Alternatively, if theplaintiffs want to end their case without prejudice, they can file a notice of voluntarilydismissal under Rule 41(a)(1) because the defendants have not answered or filed asummary−judgment motion, but then they cannot appeal. See Concha v. London, 62F.3d 1493, 1507 (9th Cir. 1995). Under the circumstances, the court directs the partiesto confer on a proposed form of judgment or whatever alternative process they mightpursue. Signed by Judge Laurel Beeler on January 19, 2017. (This is a text−only entrygenerated by the court. There is no document associated with this entry.) (lblc3S,COURT STAFF) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/22/2018 57 Ex Parte Application re 56 Order,,,, to enter final judgment and proposed order filedby Open Source Security, Inc., BRADLEY SPENGLER. (Chhabra, Rohit) (Filed on1/22/2018) (Entered: 01/22/2018)

01/24/2018 58 JUDGMENT Signed by Judge Laurel Beeler on January 24, 2018. (lblc3S,COURT STAFF) (Filed on 1/24/2018) (Entered: 01/24/2018)

02/05/2018 59 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Open SourceSecurity, Inc., BRADLEY SPENGLER. (Appeal fee of $505 receipt number0971−12085156 paid.) (Chhabra, Rohit) (Filed on 2/5/2018) (Entered: 02/05/2018)

02/05/2018 60 Transcript Designation Form for proceedings held on 12/14/2017 before Judge Hon.Laurel Beeler, (Chhabra, Rohit) (Filed on 2/5/2018) (Entered: 02/05/2018)

02/06/2018 61 Transcript Designation Form for proceedings held on 12/14/2017 before Judge Hon.Laurel Beeler, re 59 Notice of Appeal (filed 2/5/18) Transcript due by 4/6/2018.(Chhabra, Rohit) (Filed on 2/6/2018) (Entered: 02/06/2018)

02/07/2018 62 MOTION for Attorney Fees / Defendant Bruce Perens's Motion for Mandatory Feesand Costs Under California's Anti−Slapp Law and Memorandum in Support filed byBruce Perens. Responses due by 2/21/2018. Replies due by 2/28/2018. *** FILED INERROR. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. ***(Attachments: # 1 Declaration of Melody Drummond Hansen in Support of, # 2Declaration of Paul Covey, # 3 Proposed Order)(Drummond Hansen, Melody) (Filedon 2/7/2018) Modified on 2/8/2018 (wv, COURT STAFF). (Entered: 02/07/2018)

02/07/2018 63 Administrative Motion to File Under Seal filed by Bruce Perens. (Attachments: # 1Declaration of Cara L. Gagliano in Support of Motion to Seal, # 2 Proposed Order, #*** FILED IN ERROR. DOCUMENT LOCKED. DOCUMENT TO BEREFILED LATER. ***(3) Declaration of Melody Drummond Hansen (Redacted), # 4 Declaration of MelodyDrummond Hansen (Unredacted))(Drummond Hansen, Melody) (Filed on 2/7/2018)Modified on 2/8/2018 (wv, COURT STAFF). (Entered: 02/08/2018)

02/08/2018 64 MOTION for Sanctions Against Plaintiffs' Counsel; Memorandum of Points andAuthorities in Support Thereof filed by Bruce Perens. Motion Hearing set for3/29/2018 09:30 AM in San Francisco, Courtroom C, 15th Floor before MagistrateJudge Laurel Beeler. Responses due by 2/22/2018. Replies due by 3/1/2018.(Attachments: # 1 Declaration of Melody Drummond Hansen, # 2 ProposedOrder)(Drummond Hansen, Melody) (Filed on 2/8/2018) (Entered: 02/08/2018)

02/08/2018 65 CERTIFICATE OF SERVICE by Bruce Perens re 63 Administrative Motion to FileUnder Seal (Drummond Hansen, Melody) (Filed on 2/8/2018) (Entered: 02/08/2018)

02/08/2018 66 EXHIBITS re 62 MOTION for Attorney Fees / Defendant Bruce Perens's Motion forMandatory Fees and Costs Under California's Anti−Slapp Law and Memorandum inSupport (Declaration of Melody Drummond Hansen In Support of Defendant BrucePerens's Motion For Mandatory Fees And Costs Under California's Anti−SLAPP Law− Redcated and Corrected) filed byBruce Perens. (Related document(s) 62 )(Drummond Hansen, Melody) (Filed on 2/8/2018) (Entered: 02/08/2018)


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02/08/2018 67 EXHIBITS re 63 Administrative Motion to File Under Seal (Declaration of MelodyDrummond Hansen In Support − Redcated and Corrected) filed byBruce Perens.(Related document(s) 63 ) (Drummond Hansen, Melody) (Filed on 2/8/2018) (Entered:02/08/2018)

02/09/2018 Set/Reset Deadlines as to 62 MOTION for Attorney Fees / Defendant Bruce Perens'sMotion for Mandatory Fees and Costs Under California's Anti−Slapp Law andMemorandum in Support. Motion Hearing set for 3/29/2018 09:30 AM in SanFrancisco, Courtroom C, 15th Floor before Magistrate Judge Laurel Beeler. (tmiS,COURT STAFF) (Filed on 2/9/2018) (Entered: 02/09/2018)

02/10/2018 68 Ex Parte Application re 64 MOTION for Sanctions Against Plaintiffs' Counsel;Memorandum of Points and Authorities in Support Thereof −−Sanctions MotionImproper Based on Procedure−− filed by Open Source Security, Inc., BRADLEYSPENGLER. (Chhabra, Rohit) (Filed on 2/10/2018) (Entered: 02/10/2018)

02/13/2018 69 Order by Magistrate Judge Laurel Beeler granting 63 Administrative Motion toFile Under Seal. The court grants the unopposed motion to file under seal.(lblc3S,COURT STAFF) (Filed on 2/13/2018) (Entered: 02/13/2018)

02/13/2018 70 USCA Case Number 18−15189 9th Circuit for 59 Notice of Appeal filed by OpenSource Security, Inc., BRADLEY SPENGLER. (fabS, COURT STAFF) (Filed on2/13/2018) (Entered: 02/13/2018)

02/14/2018 71 STIPULATION WITH PROPOSED ORDER re 64 MOTION for Sanctions AgainstPlaintiffs' Counsel; Memorandum of Points and Authorities in Support Thereof, 62MOTION for Attorney Fees / Defendant Bruce Perens's Motion for Mandatory Feesand Costs Under California's Anti−Slapp Law and Memorandum in Support−−STIPULATED REQUEST TO SET REVISED SCHEDULE−− filed by Open SourceSecurity, Inc., BRADLEY SPENGLER. (Chhabra, Rohit) (Filed on 2/14/2018)(Entered: 02/14/2018)

02/14/2018 72 STIPULATION WITH PROPOSED ORDER re 64 MOTION for Sanctions AgainstPlaintiffs' Counsel; Memorandum of Points and Authorities in Support Thereof, 62MOTION for Attorney Fees / Defendant Bruce Perens's Motion for Mandatory Feesand Costs Under California's Anti−Slapp Law and Memorandum in Support−−[CORRECTED] STIPULATED REQUEST TO SET REVISED SCHEDULE−−filed by Open Source Security, Inc., BRADLEY SPENGLER. (Chhabra, Rohit) (Filedon 2/14/2018) (Entered: 02/14/2018)

02/14/2018 73 OPPOSITION/RESPONSE (re 68 Ex Parte Application re 64 MOTION for SanctionsAgainst Plaintiffs' Counsel; Memorandum of Points and Authorities in SupportThereof −−Sanctions Motion Improper Based on Procedure−− ) filed byBrucePerens. (Attachments: # 1 Declaration of Melody Drummond Hansen in Supportof)(Drummond Hansen, Melody) (Filed on 2/14/2018) (Entered: 02/14/2018)

02/14/2018 74 REPLY (re 68 Ex Parte Application re 64 MOTION for Sanctions Against Plaintiffs'Counsel; Memorandum of Points and Authorities in Support Thereof −−SanctionsMotion Improper Based on Procedure−− ) Rebuttal arguments to Defendant'sopposition filed byOpen Source Security, Inc., BRADLEY SPENGLER. (Chhabra,Rohit) (Filed on 2/14/2018) (Entered: 02/14/2018)

02/14/2018 76 ORDER re 72 STIPULATION WITH PROPOSED ORDER re 64 MOTION forSanctions and 62 MOTION for Attorney Fees.

Plaintiff's response to motion for attorney's fees and opposition due 3/8/2018.Defendant's reply in support of motion for attorneys' fees and reply in support ofmotion for sanctions due by 3/22/2018. Motion Hearings reset from 3/29/2018 to4/5/2018 at 09:30 AM in San Francisco, Courtroom C, 15th Floor before MagistrateJudge Laurel Beeler.Signed by Judge Laurel Beeler on 02/14/2018. (ejkS, COURT STAFF) (Filed on2/14/2018) (Entered: 02/20/2018)

02/15/2018 75 Order by Magistrate Judge Laurel Beeler denying 68 Ex Parte Application.Plaintiff's counsel has identified no prejudice from the twenty−two minutedelayed filing. The court deems the defendant's motion to be timely. (lblc3S,COURT STAFF) (Filed on 2/15/2018) (Entered: 02/15/2018)


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03/09/2018 77 Administrative Motion to File Under Seal Opposition to Attorneys' Fee andOpposition to 1927 Sanctions Motion filed by Open Source Security, Inc., BRADLEYSPENGLER. (Attachments: # 1 Proposed Order, # 2 Redacted Version of Oppositionto Motion for Attorneys' Fee, # 3 Redacted Version of Ex. 1 in Support of Oppositionof Attorney Fees Motion, # 4 Unredacted version of opposition to Attorneys' Feemotion, # 5 Unredacted Version of Ex. 1, # 6 Redacted Version of Opposition ofSection 1927 Motion, # 7 Redacted version of Exhibit in Support of Opposition toSection 1927 Sanctions, # 8 unredacted version of Opposition to 1927 Sanctions, # 9unredacted version of Exhibits in Opposition of Sanctions)(Chhabra, Rohit) (Filed on3/9/2018) (Entered: 03/09/2018)

03/09/2018 78 OPPOSITION/RESPONSE (re 62 MOTION for Attorney Fees / Defendant BrucePerens's Motion for Mandatory Fees and Costs Under California's Anti−Slapp Lawand Memorandum in Support ) filed byOpen Source Security, Inc., BRADLEYSPENGLER. (Attachments: # 1 Exhibit Ex. 1 (Redacted), # 2 Exhibit Exhibits 2−7(not under seal))(Chhabra, Rohit) (Filed on 3/9/2018) (Entered: 03/09/2018)

03/09/2018 79 OPPOSITION/RESPONSE (re 64 MOTION for Sanctions Against Plaintiffs' Counsel;Memorandum of Points and Authorities in Support Thereof ) filed byOpen SourceSecurity, Inc., BRADLEY SPENGLER. (Attachments: # 1 Exhibit Exhibits (Ex. 2Redacted))(Chhabra, Rohit) (Filed on 3/9/2018) (Entered: 03/09/2018)

03/12/2018 80 Declaration of Cara L. Gagliano in Support of Plaintiffs' Administrative Motion to SealUnder Civil L.R. 79−5(e) 77 filed byBruce Perens. (Gagliano, Cara) (Filed on3/12/2018) (Entered: 03/12/2018)

03/12/2018 81 Order by Magistrate Judge Laurel Beeler granting 77 Administrative Motion toFile Under Seal. The court grants the unopposed motion to file under seal.(lblc3S,COURT STAFF) (Filed on 3/12/2018) Modified on 3/13/2018 (aaaS, COURTSTAFF). This is a text only docket entry. (Entered: 03/12/2018)

03/22/2018 82 REPLY (re 64 MOTION for Sanctions Against Plaintiffs' Counsel; Memorandum ofPoints and Authorities in Support Thereof ) Defendant's Reply in Support of Motionfor Sanctions filed byBruce Perens. (Attachments: # 1 Declaration of MelodyDrummond Hansen, # 2 Exhibit 1, # 3 Exhibit 2)(Drummond Hansen, Melody) (Filedon 3/22/2018) (Entered: 03/22/2018)

03/22/2018 83 Administrative Motion to File Under Seal filed by Bruce Perens. (Attachments: # 1Gagliano Declaration, # 2 Proposed Order, # 3 Exhibit A (Redacted), # 4 Exhibit A(Under Seal), # 5 Exhibit B (Redacted), # 6 Exhibit B (Under Seal), # 7 DrummondHansen Declaration (Redacted), # 8 Drummond Hansen Declartion (UnderSeal))(Drummond Hansen, Melody) (Filed on 3/22/2018) (Entered: 03/22/2018)

03/22/2018 84 REPLY (re 62 MOTION for Attorney Fees / Defendant Bruce Perens's Motion forMandatory Fees and Costs Under California's Anti−Slapp Law and Memorandum inSupport ) filed byBruce Perens. (Attachments: # 1 Drummond Hansen Declartion, # 2Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8Exhibit G)(Drummond Hansen, Melody) (Filed on 3/22/2018) (Entered: 03/22/2018)

03/23/2018 85 EXHIBITS re 83 Administrative Motion to File Under Seal filed byBruce Perens.(Attachments: # 1 Exhibit E)(Related document(s) 83 ) (Drummond Hansen, Melody)(Filed on 3/23/2018) (Entered: 03/23/2018)

03/26/2018 86 CLERK'S NOTICE VACATING MOTION HEARING: The Motion Hearing, whichhas been noticed for Thursday, April 5, 2018, will be decided on papers submittedwithout oral argument. Accordingly, the hearing is hereby VACATED. (This is atext−only entry generated by the court. There is no document associated with thisentry.) (ejkS, COURT STAFF) (Filed on 3/26/2018) (Entered: 03/26/2018)

03/28/2018 87 Objection to Reply Evidence Pursuant to L.R. 7−3(d)(1) re 84 Reply toOpposition/Response filed by Open Source Security, Inc., BRADLEY SPENGLER.(Related document(s) 84 ) (Chhabra, Rohit) (Filed on 3/28/2018) (Entered:03/28/2018)

03/29/2018 88 Order by Magistrate Judge Laurel Beeler granting 83 Administrative Motion toFile Under Seal. The court grants the unopposed motion to file under seal.(lblc3S,COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)


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05/21/2018 89 ORDER.

The defendant provided a chart that summarized counsel's lodestar fees by hoursand task. The court asks for the same chart filed and word format with thefollowing additional information for each category: the biller, the hourly rate,and the total hours expended on that task. The court also asks for the billingrecords (Exhibit C) in chronological order broken out by biller. Anotherapproach is to provide a spreadsheet that allows the court to sort the fields bybiller.The information must be submitted in one week (unless that isunreasonable, in which case, the defendant must update the court by then with itstimetable). (lblc3S, COURT STAFF) (Filed on 5/21/2018). Signed by JudgeLaurel Beeler on May 21, 2018. (Entered: 05/21/2018)

05/21/2018 90 Order denying 64 Motion for Sanctions entered by Magistrate Judge LaurelBeeler.

The court exercises its discretion and declines to impose sanctions.


05/29/2018 91 Declaration of Melody Drummond Hansen in Support of Defendant Bruce Perens'sMotion for Attorneys Fees; Provided in Accordance with Court's Order RegardingChart (ECF No. 89 ) filed byBruce Perens. (Attachments: # 1 Exhibit 1)(DrummondHansen, Melody) (Filed on 5/29/2018) (Entered: 05/29/2018)

05/29/2018 92 Administrative Motion to File Under Seal filed by Bruce Perens. (Attachments: # 1Declaration of Melody Drummond Hansen in Support, # 2 Proposed Order, # 3Declaration of Melody Drummond Hansen (Redacted), # 4 Declaration of MelodyDrummond Hansen (Unredacted), # 5 Exhibit 1 − Filed Under Seal)(DrummondHansen, Melody) (Filed on 5/29/2018) (Entered: 05/29/2018)

05/30/2018 93 CERTIFICATE OF SERVICE by Bruce Perens re 92 Administrative Motion to FileUnder Seal (Drummond Hansen, Melody) (Filed on 5/30/2018) (Entered: 05/30/2018)

06/09/2018 94 Order granting 92 Administrative Motion to File Under Seal entered byMagistrate Judge Laurel Beeler. (This is a text−only entry generated by the court.There is no document associated with this entry.) (Entered: 06/09/2018)

06/09/2018 95 ORDER granting 62 Motion for Attorney Fees.

The court grants in part the motion for attorney's fees and awards $259,900.50 in fees(for 446.20 hours) and $2,403.12 in costs. Exhibits 1 and 2 are filed under seal (andthe clerical task to accomplish that will be done on Monday morning). The exhibits areunder seal for the reasons discussed in the attached order, and the parties are to treatthem as sealed absent stipulation of the parties or further order of the court.

(Attachments: # 1 Exhibit 1: Defendant's Fee Demand, # 2 Exhibit 2: Fee Award)(Beeler, Laurel) (Filed on 6/9/2018) (Entered: 06/09/2018)

06/11/2018 96 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Open SourceSecurity, Inc., BRADLEY SPENGLER. Appeal of Order on Motion for AttorneyFees,, 95 (Appeal fee of $505 receipt number 0971−12426699 paid.) (Chhabra, Rohit)(Filed on 6/11/2018) (Entered: 06/11/2018)

06/11/2018 97 ORDER. The court asks the parties to confer within two business days aboutwhether they would like a referral to a magistrate judge for a settlementconference. The parties could request a random referral or a specific judge. It ispossible to pursue an ADR option even with a notice of appeal (throughcoordination with the Ninth Circuit's ADR program). The court asks the partiesto update the court by Thursday, 6/14/2018. (This is a text−only entry generated bythe court. There is no document associated with this entry.) (Beeler, Laurel) (Filedon 6/11/2018) (Entered: 06/11/2018)


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no. 18-15189 in the united states court of appeals for...

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