"the defamation lawsuit will have to be decided on whether GR's T&Cs do infringe."
Having thought about this a little more it now seems to me a little more nuanced than that. The court doesn't need to decide whether it infringes. It needs to decide what would probably* happen if infringement proceedings were brought in a copyright case.
ISTM that the plaintiff has to prove that:
1. The article was wrong. If the article was right it becomes a very difficult task to try to argue defamation.
2. It has to prove defamation. There may be a whole lot of issues in both directions here - should Perens, as an expert, be held to higher standards than the man in the Clapham omnibus? as an expert does he have a duty to warn others? Is he protected by freedom of speech? does this SLAPP thing protect him?
The defence only has to defeat one of these issues.
* Balance of probabilities applies.
Biting the hand that feeds IT
