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Court finds calling stuff open source when it's not is false advertising

501 points by webmink 5y ago

hn_version_0023 5y ago
It seems like they’re going to cover the question I have in a “next post”: Had they not claimed they were “100% free and open source”, surely they’d have been able to change the license as they saw fit? Yes?
devmunchies 5y ago
so now open source is the licensing on not whether the source code is freely visible? "this unlicensed project is closed source, source code is free to browse >here<"
- giantg2 5y ago
  How is it closed source if the source is openly available to view?
  - auggierose 5y ago
    I think you got the point.
  - Mikeb85 5y ago
    There's plenty of closed source software where you can view the source. Open source just means the ability to modify, use and potentially redistribute according to the terms of the license.
    - giantg2 5y ago
      But the quote also says it's unlicensed.
      - roywiggins 5y ago
        If there's no license, then all rights are implicitly reserved by whoever owns the copyright, probably the author, unless it was explicitly placed in the public domain. "distributed unlicensed software (not in the public domain) is fully copyright protected, and therefore legally unusable... Examples of this are unauthorized software leaks or software projects which are placed on public software repositories like GitHub without a specified license" https://en.wikipedia.org/wiki/Software_license#Software_licenses_and_copyright_law https://en.wikipedia.org/wiki/Software_license#Software_lice...
        giantg2 5y ago
        My bad, I took it to mean fully copyleft or dedicated.
      - Mikeb85 5y ago
        Unlicensed is the same as closed source. It's only open source if explicitly stated.
  - yjftsjthsd-h 5y ago
    If it's not possible for people to (legally) use that source, or to modify or redistribute it, then it's not open source, it's just shared source / source available (https://en.wikipedia.org/wiki/Source-available_software https://en.wikipedia.org/wiki/Source-available_software).
    - giantg2 5y ago
      If it's unlicensed (in the quote) and source is available, then what restrictions are there?
      - rectang 5y ago
        You have no license to use it. Any use would be infringing.
        giantg2 5y ago
        Not if copyright is not claimed.
        Dylan16807 5y ago
        Copyright is automatic.
        giantg2 5y ago
        True, I mean if you dedicate it or decide not to defend it.
        Dylan16807 5y ago
        It's really splitting hairs to say that dedicating it isn't a license. Especially because you need a fallback license in many countries. Deciding not to defend it means it's still copyright infringement to use the unlicensed code, and they could change their mind at any time.
  - devmunchies 5y ago
    that was my point. "open source" is a loaded term.
- yjftsjthsd-h 5y ago
  What? Open source was always about the license, and has never included "shared source" / "source available".
- pie_flavor 5y ago
  Yes, this is what it has basically always meant to basically everyone who uses it. https://opensource.org/osd https://opensource.org/osd
joshuaissac 5y ago
I think the salient point of the article is this: > However, the court held that it was improper for the defendants to remove the Commons Clause, and therefore the defendants’ claims in advertising that its ONgDB software was open source was false advertising. > Even though the AGPL has a clause specifically allowing downstream recipients to remove "further restrictions" like the Commons Clause, the court stopped the defendant from doing just that. The decision of the trial court reads: > Section 7 of the Sweden Software License only permits a downstream licensee to remove "further restrictions" added by an upstream licensee to the original work. "Sweden Software License" here refers to the AGPL+Commons Clause. Archive link: https://web.archive.org/web/20220317154012/https://opensource.org/court-affirms-its-false-advertising-to-claim-software-is-open-source-when-its-not https://web.archive.org/web/20220317154012/https://opensourc... AGPL: https://www.gnu.org/licenses/agpl-3.0.en.html https://www.gnu.org/licenses/agpl-3.0.en.html
- mintplant 5y ago
  This is the part of the decision I don't understand. The AGPL seems pretty clear: > All other non-permissive additional terms are considered "further restrictions" within the meaning of section 10. If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.
  - josefx 5y ago
    As far as I understand it was never legally AGPL licensed, it was licensed on a custom license that just happened to merge AGPL and commons clause. The commons clause in this case is not an addition to existing AGPL licensed code.
    - mintplant 5y ago
      I don't think this argument holds, because Section 7 refers to "this License", which the AGPL text defines specifically as: > "This License" refers to version 3 of the GNU Affero General Public License. Thus I don't think that references to "this License" within the portion of their custom license that is the verbatim AGPL text would automatically expand to also encompass the tacked-on Commons Clause text.
cosydney 5y ago
Does anyone recommend some documentations to know all the licences vs open source? I'm thinking of launching one of our project in open source but don't want to end up in this kind or articles ^^
- colejohnson66 5y ago
  Take a look at the popular licenses from the OSI: https://opensource.org/licenses https://opensource.org/licenses
- glind72 5y ago
  [dead]
- warp 5y ago
  https://opensource.org/licenses/category https://opensource.org/licenses/category is the list of all Open Source licenses vetted by the OSI (open source initiative). Other licenses may be open source, but you'd probably have to get lawyers involved to make sure. So it's better to just pick a license which the OSI considers Open Source. If you don't want to rely on just the OSI, you can also check what the Free Software Foundation, Debian and Red Hat think of the license you've picked.
  - account42 5y ago
    Moreover, picking an existing popular open source license is important because a and b being opensource licenses does not mean that they are compatible, i.e. they could still have mutually-incompatible requirements that prevent anyone from releasing a combination of a-licensed and b-licensed code.
- mindcrime 5y ago
  Neither is super up to date, but these should cover the important stuff: - Understanding Open Source and Free Software Licensing[1] - Open Source Licensing[2] And then Producing OSS[3] also contains a (very) brief section on choosing a license. It's worth reading though, for other reasons. [1]: https://people.debian.org/~dktrkranz/legal/Understanding%20Open%20Source%20and%20Free%20Software%20Licensing.pdf https://people.debian.org/~dktrkranz/legal/Understanding%20O... [2]: https://www.rosenlaw.com/oslbook.htm https://www.rosenlaw.com/oslbook.htm [3]: https://producingoss.com/en/producingoss-letter.pdf https://producingoss.com/en/producingoss-letter.pdf
glind72 5y ago
This is really interesting. Specifically this quote "it’s false advertising to claim that software is “open source” when it’s not licensed under an open source license". Also, is opensource.org and the OSI the only organization that can define it and if so should they be? To me this is more about false advertising and changing a license. Another reason to look at a tool like debricked for license management.
- mkr-hn 5y ago
  Think of this in terms of a brand defending their trademark to avoid losing it through dilution. It's Open Source, a term they created, not a generic concept "open source." I don't like them owning a term that feels like it should be generic and communally defined, but it's not, and they do.
  - Dylan16807 5y ago
    Do they even claim to own the term? They are the Open Source Initiative, stewards of the Open Source Definition. The closest I see is a rule then when you're using the OSI trademark or logo you need to follow their definition of "Open Source".
    - kube-system 5y ago
      They don't claim to own it, because they legally do not have a right to it. They tried to register it and failed.
- pie_flavor 5y ago
  The OSI founders are (some of) the inventors of the term Open Source. It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy. Or, for that matter, the Free Software Foundation that they're wrong about what constitutes Free Software.
  - Dylan16807 5y ago
    > It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy. If his definition has shifted, it might be entirely correct to say he's wrong. You can also accept his general definition but validly disagree with how exactly to apply it. Inventing a term gives you a lot of authority but not total control over what it means.
joebob42 5y ago
I don't like that OSI seems to somehow come away with this (at least as framed here) with control of the term. I agree just calling whatever nonsense open-source is problematic, but I don't agree it has to be one of their licenses to be open source at all.
- hn_version_0023 5y ago
  That part seemed like their own spin on the decision, to me. I agree with you: they shouldn’t control the term.
  - busterarm 5y ago
    They determined the guidelines of what constitutes being Open Source. Absolutely they should control the term. Just look at all of the companies out there with "source-available" licenses masquerading as Open Source. Neo4j themselves here uses "Open Source" in all of their marketing materials and should be just as guilty as this fork of false advertising.
    - phendrenad2 5y ago
      OSI doesn't need to control what licenses qualify as "open source" for neo4j to be sued for false advertising.
    - deleted 5y ago
      [deleted]
    - hn_version_0023 5y ago
      Hard disagreement from me. The courts get to decide, not some random organization that clearly has an interest in promoting themselves.
      - prepend 5y ago
        OSI is not random and, while not perfect, are a pretty good steward of the concept. They’re a non-profit with a clear goal and broad membership. Not sure who else would be better.
phendrenad2 5y ago
IANAL, but it seems to me that the court has only decided that if you fork software, and break it's license by removing clauses that aren't permitted to be removed (think removing one of the 3 clauses in a 3-clause BSD license), then you're distributing the software under a license that is a lie, and thus invalid, and thus not "open-source". Could this be used as precedent if you release software and claim that it's open-source, but don't provide full source or even any source at all? Probably not IMHO.
- teilo 5y ago
  Yes, this is what I think is going on here. It's a bit more complicated though. In the case of AGPL, you have an original open source release A that is forked to create B, and restrictions are added to the license of B. The original license of A permits those restrictions to be removed by someone who forks B into C. C is under no obligation to abide by those additional restrictions added by B. But for that rule to apply in this case, the original code must have been licensed without such restrictions. If the original code, as in the case of Neo4j EE, was licensed under AGPL+Commons Clause, then that combination IS the original license. Downstream forks cannot remove that Commons Clause restriction and claim that the fork is "Free," because the original license is still in force, restrictions and all.
- thayne 5y ago
  > Could this be used as precedent if you release software and claim that it's open-source, but don't provide full source or even any source at all? Probably not IMHO. That would be unfortunate, because there are companies that claim their products are "open source" even though they clearly aren't. For example pritunl markets their product as open source on their website, but while the source code is available on github, it is licensed with a proprietary license that doesn't let you do basically anything with that source code.
  - phendrenad2 5y ago
    Yea there are many many companies that do this. Maybe we need a "hall of shame" to call them out. Maybe we can give out "Biggest Open Source Liar" awards.
vmception 5y ago
What court? Site wont load
- kevinh 5y ago
  The US Court of Appeals for the Ninth Circuit.
  - JJMcJ 5y ago
    Ninth Circuit is western part of the country, including California and Washington, for computer related things.
  - vmception 5y ago
    Great! That has weight!
nulbyte 5y ago
> The court only confirmed what we already know – that "open source" is a term of art for software that has been licensed under a specific type of license, and whether a license is an OSI-approved license is a critically important factor in user adoption of the software. The court confirmed no such things. The decisions expressed in these two documents regarding the use of "open source" as a description of the product in question hinge upon the fact that someone else's software was released under a new license by Defendant, who had no authority to do so. The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not. The court also did not consider any license-approving practices, let alone those of the Open Source Institute, of whom I find no mention in either document used to justify OSI's claim.
- rectang 5y ago
  This is the key phrase from the Appeals court decision: https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.140.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.cand.33... > Defendants' representation that ONgDB is a "free and open source" version of Neo4j® EE was literally false, because Section 7 of the Sweden Software License only permits a downstream license to remove "further restrictions" added by an upstream license to the original work. It makes sense to me that if the court believes the defendants had no license to use the code at all, then describing it as any "licensed" version would be improper, whether their product was released under a "free and open source" license or even some other kind of license. I don't fully understand the second part of the sentence about removing the restriction, but I think the court is just explaining why the defendants have no license. > The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not. In the Appeals Court decision I didn't see anything affirming that the Plaintiff's license (the text of which is AGPL + Commons Clause) was "open source". EDIT: There's more in the trial court decision.
- jcranmer 5y ago
  Yeah, that entire paragraph is complete and total bunk. If you go the trial court's opinion regarding the "free and open source" bit: > The parties agree that the truth or falsity of Defendants’ statements hinge on “the interpretation of Section 7 [of the Neo4j Sweden Software License], and GFI’s right to remove the Commons Clause from the Neo4j Sweden Software License.” The court isn't deciding if ONgDB is "free and open source" according to a lay definition of the term, it's deciding if ONgDB has the right to license it in that matter, since that's what the parties are asking it to decide. In other words, if the statement is "ONgDB is a free and open source version of Neo4j", the operative words being challenged aren't so much "free and open source" as they are "version" (or more specifically, the implicit "validly licensed" phrase).
gre 5y ago
OpenAI.
jdc22 5y ago
I wonder if could lead to Apple getting in trouble for claiming that WebKit is "open-source" despite ignoring the requirement that programs (e.g., Safari) that include LGPL libraries permit them to be re-linked (which is something that Apple has implicitly disallowed ever since their platforms required code signing).
valdiorn 5y ago
A bunch of people here are conflating the concepts of "free software" and "open source". these are not the same. "Free" (as in speech, or beer) software is governed by the license it is published under. Open source simply refers to the fact that the source code is publicly available. Open source is a prerequisite for truly free (as in speech) software, but the opposite is not.
- pie_flavor 5y ago
  The court decision directly declares this false. The fact that AGPL+Commons makes code source-available (the source code is publicly available) but not open-source (https://opensource.org/osd https://opensource.org/osd) is the false advertising claim in question. If you were to design a source-available nonfree product, and call it 'open source', this court would find you guilty of false advertising. Not that this should come as a surprise, as the OSI definition has every right to be authoritative, given that the people who started the OSI literally invented the term.
  - teilo 5y ago
    No, that's not what the decision says. OSI is guilty of making claims that the court did not make, and they are adding needless confusion to the legal definitions of the terms "Open Source" and "Free". No court has ever ruled on a definitive meaning of "open source" that matches OSI's definition of the term. OSI is claiming that the term "open source" is what is false advertising. But both the trial and appellate courts are specifically calling out the phrase "open source and free" as false advertising. Neo4j EE and ONgDB may be "open source," but they are definitely not "free." If the defendants had only claimed that ONgDB was "open source" they might not have had any issues. But because they removed the Commons Clause and also declared it "free," they are in violation of the original license of Neo4J EE, a license which is still in force, and a license which is not "free."
    - giantg2 5y ago
      Look at that, there's one other person in this post that knows what's really going on.
andreisbc 5y ago
Supabase should hear this
giantg2 5y ago
Nothing to see here, move along. The only thing it really addresses about the licensing, is that the license permits downstream users to remove additional terms added by upstream licensees. So original licensing of the licensor (adding the Commons Clause) is not allowed to be removed by a licensee as it doesn't fit the definition of an additional term.
pie_flavor 5y ago
This article doesn't really explain what happened, and the details it does give contradict each other. Here it is as I understand it: - the plaintiff's software was under the AGPL+Commons, which makes it non-open-source - the defendants copied the software, re-releasing it under bare AGPL, under the clause that says you can remove upstream restrictions - that clause is actually about licensees, and the plaintiff isn't a licensee, they're a copyright holder. So the defendants had no right to remove it and their version can only be, and therefore is, subject to the Commons Clause too - their declaration of being open source would have been valid if they had the right to license the work as they did, but they didn't, so it's not open-source I assume that the plaintiff couldn't figure out a way to make a copyright license violation accusation stick, so they went after them for false advertising instead, and the judge judged it with the intensity of a copyright license violation because he knew the score too. This seems like a bizarre train for the OSI to leap on because it doesn't further anything about open-source and only furthers the interests of people who aren't.
- joshuaissac 5y ago
  > that clause actually says upstream licensee The AGPL does not use that wording, but the court chose to interpret it that way because the alternative interpretation that a licence could restrict how the original licensor can convey their work was deemed to incompatible with the principles of contract and copyright law.
  - deleted 5y ago
    [deleted]
  - pie_flavor 5y ago
    The 'you' in section 10 refers to the licensee, and section 7 is specifically about further restrictions as defined in section 10. It doesn't help that the AGPL didn't capitalize that phrase, but as the document defines it, conditions added by the copyright holder as opposed to licensees don't count as 'further restrictions'.
teilo 5y ago
I wish that OSI would stop acting like the courts have ruled that "open source" means what OSI says it means. They have not.
righttoolforjob 5y ago
Who is getting sued here? The post mentions Neo4j in the initial paragraph, but then it shifts to talking about someone who tried to promote their fork as open source. Shouldn't Neo4j be sued as well for falsely claiming to be open source then?
- SOLAR_FIELDS 5y ago
  This is related to a long ongoing court battle between Neo4j and Graph Found (ONgDB). Basically the latter forked the former but removed some clauses from the license they weren't supposed to remove, and this tangential ruling is basically stating that they can't call it open source in their advertising because of that. Related reading: https://casetext.com/case/neo4j-inc-v-graph-found-inc https://casetext.com/case/neo4j-inc-v-graph-found-inc
  - righttoolforjob 5y ago
    I understand it a bit differently. They could not remove the clause (as they do not dictate the license), so the clause stays. The software is thus licensed the same way as the original repo and neither can be called open source. Whoever sued these folks for false advertising should sue Neo4j as well.
    - thayne 5y ago
      But isn't Neo4j suing Graph Found? Why would Neo4j sue themselves?
      - righttoolforjob 5y ago
        I suppose it should be a regulator representing the public then.
stonemetal12 5y ago
So on the Neo4j website they have a community edition that is GPLv3 license with a link to gnu.org, not their own gpl + some stuff version. However on their pricing page they list a number of size and performance limitations to the community edition. How does that work? It would seem like false advertising to claim I have to upgrade to remove their arbitrary limitations. I don't see how they legally enforce those limitations since they are licensing under a vanilla GPL v3.
SLWW 5y ago
When licensing something open-source; there should be proof that, within reasonable allowance, that the source should be viewable, downloadable, and modifiable by any customer or person who is aware of the software. I don't get how so many companies say they are "open source" but there's not a single line of uncompiled code available even on request.
jayp1418 5y ago
https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThink.html https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThin...
timzaman 5y ago
Reminds me of OpenAI
pleb_nz 5y ago
Please extend to food advertising. Especially fast food advertising. How can it be legal to advertise a food products and the delivered results are nothing like what was advertised. Imagine a car sales person doing the same thing.

501 points by webmink 5y ago

It seems like they’re going to cover the question I have in a “next post”: Had they not claimed they were “100% free and open source”, surely they’d have been able to change the license as they saw fit? Yes?

devmunchies 5y ago

so now open source is the licensing on not whether the source code is freely visible? "this unlicensed project is closed source, source code is free to browse >here<"

giantg2 5y ago
How is it closed source if the source is openly available to view?
- auggierose 5y ago
  I think you got the point.
- Mikeb85 5y ago
  There's plenty of closed source software where you can view the source. Open source just means the ability to modify, use and potentially redistribute according to the terms of the license.
  - giantg2 5y ago
    But the quote also says it's unlicensed.
    - roywiggins 5y ago
      If there's no license, then all rights are implicitly reserved by whoever owns the copyright, probably the author, unless it was explicitly placed in the public domain. "distributed unlicensed software (not in the public domain) is fully copyright protected, and therefore legally unusable... Examples of this are unauthorized software leaks or software projects which are placed on public software repositories like GitHub without a specified license" https://en.wikipedia.org/wiki/Software_license#Software_licenses_and_copyright_law https://en.wikipedia.org/wiki/Software_license#Software_lice...
      - giantg2 5y ago
        My bad, I took it to mean fully copyleft or dedicated.
    - Mikeb85 5y ago
      Unlicensed is the same as closed source. It's only open source if explicitly stated.
- yjftsjthsd-h 5y ago
  If it's not possible for people to (legally) use that source, or to modify or redistribute it, then it's not open source, it's just shared source / source available (https://en.wikipedia.org/wiki/Source-available_software https://en.wikipedia.org/wiki/Source-available_software).
  - giantg2 5y ago
    If it's unlicensed (in the quote) and source is available, then what restrictions are there?
    - rectang 5y ago
      You have no license to use it. Any use would be infringing.
      - giantg2 5y ago
        Not if copyright is not claimed.
        Dylan16807 5y ago
        Copyright is automatic.
        giantg2 5y ago
        True, I mean if you dedicate it or decide not to defend it.
        Dylan16807 5y ago
        It's really splitting hairs to say that dedicating it isn't a license. Especially because you need a fallback license in many countries. Deciding not to defend it means it's still copyright infringement to use the unlicensed code, and they could change their mind at any time.
- devmunchies 5y ago
  that was my point. "open source" is a loaded term.
yjftsjthsd-h 5y ago
What? Open source was always about the license, and has never included "shared source" / "source available".
pie_flavor 5y ago
Yes, this is what it has basically always meant to basically everyone who uses it. https://opensource.org/osd https://opensource.org/osd

joshuaissac 5y ago

I think the salient point of the article is this: > However, the court held that it was improper for the defendants to remove the Commons Clause, and therefore the defendants’ claims in advertising that its ONgDB software was open source was false advertising. > Even though the AGPL has a clause specifically allowing downstream recipients to remove "further restrictions" like the Commons Clause, the court stopped the defendant from doing just that. The decision of the trial court reads: > Section 7 of the Sweden Software License only permits a downstream licensee to remove "further restrictions" added by an upstream licensee to the original work. "Sweden Software License" here refers to the AGPL+Commons Clause. Archive link: https://web.archive.org/web/20220317154012/https://opensource.org/court-affirms-its-false-advertising-to-claim-software-is-open-source-when-its-not https://web.archive.org/web/20220317154012/https://opensourc... AGPL: https://www.gnu.org/licenses/agpl-3.0.en.html https://www.gnu.org/licenses/agpl-3.0.en.html

mintplant 5y ago
This is the part of the decision I don't understand. The AGPL seems pretty clear: > All other non-permissive additional terms are considered "further restrictions" within the meaning of section 10. If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.
- josefx 5y ago
  As far as I understand it was never legally AGPL licensed, it was licensed on a custom license that just happened to merge AGPL and commons clause. The commons clause in this case is not an addition to existing AGPL licensed code.
  - mintplant 5y ago
    I don't think this argument holds, because Section 7 refers to "this License", which the AGPL text defines specifically as: > "This License" refers to version 3 of the GNU Affero General Public License. Thus I don't think that references to "this License" within the portion of their custom license that is the verbatim AGPL text would automatically expand to also encompass the tacked-on Commons Clause text.

cosydney 5y ago

Does anyone recommend some documentations to know all the licences vs open source? I'm thinking of launching one of our project in open source but don't want to end up in this kind or articles ^^

colejohnson66 5y ago
Take a look at the popular licenses from the OSI: https://opensource.org/licenses https://opensource.org/licenses
glind72 5y ago
[dead]
warp 5y ago
https://opensource.org/licenses/category https://opensource.org/licenses/category is the list of all Open Source licenses vetted by the OSI (open source initiative). Other licenses may be open source, but you'd probably have to get lawyers involved to make sure. So it's better to just pick a license which the OSI considers Open Source. If you don't want to rely on just the OSI, you can also check what the Free Software Foundation, Debian and Red Hat think of the license you've picked.
- account42 5y ago
  Moreover, picking an existing popular open source license is important because a and b being opensource licenses does not mean that they are compatible, i.e. they could still have mutually-incompatible requirements that prevent anyone from releasing a combination of a-licensed and b-licensed code.
mindcrime 5y ago
Neither is super up to date, but these should cover the important stuff: - Understanding Open Source and Free Software Licensing[1] - Open Source Licensing[2] And then Producing OSS[3] also contains a (very) brief section on choosing a license. It's worth reading though, for other reasons. [1]: https://people.debian.org/~dktrkranz/legal/Understanding%20Open%20Source%20and%20Free%20Software%20Licensing.pdf https://people.debian.org/~dktrkranz/legal/Understanding%20O... [2]: https://www.rosenlaw.com/oslbook.htm https://www.rosenlaw.com/oslbook.htm [3]: https://producingoss.com/en/producingoss-letter.pdf https://producingoss.com/en/producingoss-letter.pdf

glind72 5y ago

This is really interesting. Specifically this quote "it’s false advertising to claim that software is “open source” when it’s not licensed under an open source license". Also, is opensource.org and the OSI the only organization that can define it and if so should they be? To me this is more about false advertising and changing a license. Another reason to look at a tool like debricked for license management.

mkr-hn 5y ago
Think of this in terms of a brand defending their trademark to avoid losing it through dilution. It's Open Source, a term they created, not a generic concept "open source." I don't like them owning a term that feels like it should be generic and communally defined, but it's not, and they do.
- Dylan16807 5y ago
  Do they even claim to own the term? They are the Open Source Initiative, stewards of the Open Source Definition. The closest I see is a rule then when you're using the OSI trademark or logo you need to follow their definition of "Open Source".
  - kube-system 5y ago
    They don't claim to own it, because they legally do not have a right to it. They tried to register it and failed.
pie_flavor 5y ago
The OSI founders are (some of) the inventors of the term Open Source. It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy. Or, for that matter, the Free Software Foundation that they're wrong about what constitutes Free Software.
- Dylan16807 5y ago
  > It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy. If his definition has shifted, it might be entirely correct to say he's wrong. You can also accept his general definition but validly disagree with how exactly to apply it. Inventing a term gives you a lot of authority but not total control over what it means.

joebob42 5y ago

I don't like that OSI seems to somehow come away with this (at least as framed here) with control of the term. I agree just calling whatever nonsense open-source is problematic, but I don't agree it has to be one of their licenses to be open source at all.

hn_version_0023 5y ago
That part seemed like their own spin on the decision, to me. I agree with you: they shouldn’t control the term.
- busterarm 5y ago
  They determined the guidelines of what constitutes being Open Source. Absolutely they should control the term. Just look at all of the companies out there with "source-available" licenses masquerading as Open Source. Neo4j themselves here uses "Open Source" in all of their marketing materials and should be just as guilty as this fork of false advertising.
  - phendrenad2 5y ago
    OSI doesn't need to control what licenses qualify as "open source" for neo4j to be sued for false advertising.
  - deleted 5y ago
    [deleted]
  - hn_version_0023 5y ago
    Hard disagreement from me. The courts get to decide, not some random organization that clearly has an interest in promoting themselves.
    - prepend 5y ago
      OSI is not random and, while not perfect, are a pretty good steward of the concept. They’re a non-profit with a clear goal and broad membership. Not sure who else would be better.

phendrenad2 5y ago

IANAL, but it seems to me that the court has only decided that if you fork software, and break it's license by removing clauses that aren't permitted to be removed (think removing one of the 3 clauses in a 3-clause BSD license), then you're distributing the software under a license that is a lie, and thus invalid, and thus not "open-source". Could this be used as precedent if you release software and claim that it's open-source, but don't provide full source or even any source at all? Probably not IMHO.

teilo 5y ago
Yes, this is what I think is going on here. It's a bit more complicated though. In the case of AGPL, you have an original open source release A that is forked to create B, and restrictions are added to the license of B. The original license of A permits those restrictions to be removed by someone who forks B into C. C is under no obligation to abide by those additional restrictions added by B. But for that rule to apply in this case, the original code must have been licensed without such restrictions. If the original code, as in the case of Neo4j EE, was licensed under AGPL+Commons Clause, then that combination IS the original license. Downstream forks cannot remove that Commons Clause restriction and claim that the fork is "Free," because the original license is still in force, restrictions and all.
thayne 5y ago
> Could this be used as precedent if you release software and claim that it's open-source, but don't provide full source or even any source at all? Probably not IMHO. That would be unfortunate, because there are companies that claim their products are "open source" even though they clearly aren't. For example pritunl markets their product as open source on their website, but while the source code is available on github, it is licensed with a proprietary license that doesn't let you do basically anything with that source code.
- phendrenad2 5y ago
  Yea there are many many companies that do this. Maybe we need a "hall of shame" to call them out. Maybe we can give out "Biggest Open Source Liar" awards.

vmception 5y ago

What court? Site wont load

kevinh 5y ago
The US Court of Appeals for the Ninth Circuit.
- JJMcJ 5y ago
  Ninth Circuit is western part of the country, including California and Washington, for computer related things.
- vmception 5y ago
  Great! That has weight!

nulbyte 5y ago

> The court only confirmed what we already know – that "open source" is a term of art for software that has been licensed under a specific type of license, and whether a license is an OSI-approved license is a critically important factor in user adoption of the software. The court confirmed no such things. The decisions expressed in these two documents regarding the use of "open source" as a description of the product in question hinge upon the fact that someone else's software was released under a new license by Defendant, who had no authority to do so. The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not. The court also did not consider any license-approving practices, let alone those of the Open Source Institute, of whom I find no mention in either document used to justify OSI's claim.

rectang 5y ago
This is the key phrase from the Appeals court decision: https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.140.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.cand.33... > Defendants' representation that ONgDB is a "free and open source" version of Neo4j® EE was literally false, because Section 7 of the Sweden Software License only permits a downstream license to remove "further restrictions" added by an upstream license to the original work. It makes sense to me that if the court believes the defendants had no license to use the code at all, then describing it as any "licensed" version would be improper, whether their product was released under a "free and open source" license or even some other kind of license. I don't fully understand the second part of the sentence about removing the restriction, but I think the court is just explaining why the defendants have no license. > The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not. In the Appeals Court decision I didn't see anything affirming that the Plaintiff's license (the text of which is AGPL + Commons Clause) was "open source". EDIT: There's more in the trial court decision.
jcranmer 5y ago
Yeah, that entire paragraph is complete and total bunk. If you go the trial court's opinion regarding the "free and open source" bit: > The parties agree that the truth or falsity of Defendants’ statements hinge on “the interpretation of Section 7 [of the Neo4j Sweden Software License], and GFI’s right to remove the Commons Clause from the Neo4j Sweden Software License.” The court isn't deciding if ONgDB is "free and open source" according to a lay definition of the term, it's deciding if ONgDB has the right to license it in that matter, since that's what the parties are asking it to decide. In other words, if the statement is "ONgDB is a free and open source version of Neo4j", the operative words being challenged aren't so much "free and open source" as they are "version" (or more specifically, the implicit "validly licensed" phrase).

gre 5y ago

OpenAI.

jdc22 5y ago

I wonder if could lead to Apple getting in trouble for claiming that WebKit is "open-source" despite ignoring the requirement that programs (e.g., Safari) that include LGPL libraries permit them to be re-linked (which is something that Apple has implicitly disallowed ever since their platforms required code signing).

valdiorn 5y ago

A bunch of people here are conflating the concepts of "free software" and "open source". these are not the same. "Free" (as in speech, or beer) software is governed by the license it is published under. Open source simply refers to the fact that the source code is publicly available. Open source is a prerequisite for truly free (as in speech) software, but the opposite is not.

pie_flavor 5y ago
The court decision directly declares this false. The fact that AGPL+Commons makes code source-available (the source code is publicly available) but not open-source (https://opensource.org/osd https://opensource.org/osd) is the false advertising claim in question. If you were to design a source-available nonfree product, and call it 'open source', this court would find you guilty of false advertising. Not that this should come as a surprise, as the OSI definition has every right to be authoritative, given that the people who started the OSI literally invented the term.
- teilo 5y ago
  No, that's not what the decision says. OSI is guilty of making claims that the court did not make, and they are adding needless confusion to the legal definitions of the terms "Open Source" and "Free". No court has ever ruled on a definitive meaning of "open source" that matches OSI's definition of the term. OSI is claiming that the term "open source" is what is false advertising. But both the trial and appellate courts are specifically calling out the phrase "open source and free" as false advertising. Neo4j EE and ONgDB may be "open source," but they are definitely not "free." If the defendants had only claimed that ONgDB was "open source" they might not have had any issues. But because they removed the Commons Clause and also declared it "free," they are in violation of the original license of Neo4J EE, a license which is still in force, and a license which is not "free."
  - giantg2 5y ago
    Look at that, there's one other person in this post that knows what's really going on.

andreisbc 5y ago

Supabase should hear this

giantg2 5y ago

Nothing to see here, move along. The only thing it really addresses about the licensing, is that the license permits downstream users to remove additional terms added by upstream licensees. So original licensing of the licensor (adding the Commons Clause) is not allowed to be removed by a licensee as it doesn't fit the definition of an additional term.

pie_flavor 5y ago

This article doesn't really explain what happened, and the details it does give contradict each other. Here it is as I understand it: - the plaintiff's software was under the AGPL+Commons, which makes it non-open-source - the defendants copied the software, re-releasing it under bare AGPL, under the clause that says you can remove upstream restrictions - that clause is actually about licensees, and the plaintiff isn't a licensee, they're a copyright holder. So the defendants had no right to remove it and their version can only be, and therefore is, subject to the Commons Clause too - their declaration of being open source would have been valid if they had the right to license the work as they did, but they didn't, so it's not open-source I assume that the plaintiff couldn't figure out a way to make a copyright license violation accusation stick, so they went after them for false advertising instead, and the judge judged it with the intensity of a copyright license violation because he knew the score too. This seems like a bizarre train for the OSI to leap on because it doesn't further anything about open-source and only furthers the interests of people who aren't.

joshuaissac 5y ago
> that clause actually says upstream licensee The AGPL does not use that wording, but the court chose to interpret it that way because the alternative interpretation that a licence could restrict how the original licensor can convey their work was deemed to incompatible with the principles of contract and copyright law.
- deleted 5y ago
  [deleted]
- pie_flavor 5y ago
  The 'you' in section 10 refers to the licensee, and section 7 is specifically about further restrictions as defined in section 10. It doesn't help that the AGPL didn't capitalize that phrase, but as the document defines it, conditions added by the copyright holder as opposed to licensees don't count as 'further restrictions'.

teilo 5y ago

I wish that OSI would stop acting like the courts have ruled that "open source" means what OSI says it means. They have not.

righttoolforjob 5y ago

Who is getting sued here? The post mentions Neo4j in the initial paragraph, but then it shifts to talking about someone who tried to promote their fork as open source. Shouldn't Neo4j be sued as well for falsely claiming to be open source then?

SOLAR_FIELDS 5y ago
This is related to a long ongoing court battle between Neo4j and Graph Found (ONgDB). Basically the latter forked the former but removed some clauses from the license they weren't supposed to remove, and this tangential ruling is basically stating that they can't call it open source in their advertising because of that. Related reading: https://casetext.com/case/neo4j-inc-v-graph-found-inc https://casetext.com/case/neo4j-inc-v-graph-found-inc
- righttoolforjob 5y ago
  I understand it a bit differently. They could not remove the clause (as they do not dictate the license), so the clause stays. The software is thus licensed the same way as the original repo and neither can be called open source. Whoever sued these folks for false advertising should sue Neo4j as well.
  - thayne 5y ago
    But isn't Neo4j suing Graph Found? Why would Neo4j sue themselves?
    - righttoolforjob 5y ago
      I suppose it should be a regulator representing the public then.

stonemetal12 5y ago

So on the Neo4j website they have a community edition that is GPLv3 license with a link to gnu.org, not their own gpl + some stuff version. However on their pricing page they list a number of size and performance limitations to the community edition. How does that work? It would seem like false advertising to claim I have to upgrade to remove their arbitrary limitations. I don't see how they legally enforce those limitations since they are licensing under a vanilla GPL v3.

SLWW 5y ago

When licensing something open-source; there should be proof that, within reasonable allowance, that the source should be viewable, downloadable, and modifiable by any customer or person who is aware of the software. I don't get how so many companies say they are "open source" but there's not a single line of uncompiled code available even on request.

jayp1418 5y ago

https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThink.html https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThin...

timzaman 5y ago

Reminds me of OpenAI

pleb_nz 5y ago

Please extend to food advertising. Especially fast food advertising. How can it be legal to advertise a food products and the delivered results are nothing like what was advertised. Imagine a car sales person doing the same thing.