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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

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.
    - josefx 5y ago
      Okay, if I read the court document correctly Section 7 explicitly refers to Section 10 to limit its scope and section 10 is explicitly about things a licensee (You) isn't allowed to do. So it cannot be applied to terms added by the licensor.
- joshuaissac 5y ago
  The longer order with the facts[1] has more details about this point than the shorter decision.[2] They explain their rationale on pages 24-25. It seems that this question was already decided by the court in an earlier case, Neo4j, Inc. v. Graph Found., Inc 2020.[3] They decided that only restrictions added by downstream licensees could be removed in this way. The original licensor can impose additional restrictions, and those cannot be removed, because it would be "contrary to the principles of contract and copyright law" to allow such a thing. 1. https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.118.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.cand.33... 2. 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... 3. https://casetext.com/case/ne04j-inc-v-graph-found-inc/ https://casetext.com/case/ne04j-inc-v-graph-found-inc/

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.
  - josefx 5y ago
    Okay, if I read the court document correctly Section 7 explicitly refers to Section 10 to limit its scope and section 10 is explicitly about things a licensee (You) isn't allowed to do. So it cannot be applied to terms added by the licensor.
joshuaissac 5y ago
The longer order with the facts[1] has more details about this point than the shorter decision.[2] They explain their rationale on pages 24-25. It seems that this question was already decided by the court in an earlier case, Neo4j, Inc. v. Graph Found., Inc 2020.[3] They decided that only restrictions added by downstream licensees could be removed in this way. The original licensor can impose additional restrictions, and those cannot be removed, because it would be "contrary to the principles of contract and copyright law" to allow such a thing. 1. https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.118.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.cand.33... 2. 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... 3. https://casetext.com/case/ne04j-inc-v-graph-found-inc/ https://casetext.com/case/ne04j-inc-v-graph-found-inc/