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> 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

> 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).
api 5y ago
It’s an OSI relevance puff piece. They want to make sure they own the term.
delusional 5y ago
I understand how it can be misread though. In the documents it does seem like the court is taking a stance, but in fact it's punting on that because the two parties agree. Because both parties agree that AGPL + Common Clause can't be classified as "free and open" the court can decide if ONgDB is "free and open" by determining if it's licensed under AGPL + Common Clause. The court doesn't have to have an opinion on what "free and open" means, because the involved parties are already in agreement.
ttybird2 5y ago
OSI has been trying really hard to claim the term for themselves in a dishonest way, even though they were not the ones that invented it. https://news.ycombinator.com/item?id=26507460 https://news.ycombinator.com/item?id=26507460
- bawolff 5y ago
  That's not really convincing. Sure the term "open" and "source" have appeared in conjunction together previously, but it was rare for it to be used as a proper noun, instead of an adjective describing a noun, and even if it was, it was OSI that populized the term. Regardless of any historical context, in contemporary usage, "open source" has a commonly understand meaning and its what the OSI says it is. Other meanings make as much sense as pointing out that computers aren't machines, but a job title.
  - Beltalowda 5y ago
    > "open source" has a commonly understand meaning and its what the OSI says it is I would contest this, based on the many discussions there have been on HN about this, as well as many people (including many "normal" software developers who are not deeply invested in open source) I've met and talked to over the years having only a vague notion of what "open source" is exactly (often being something along the lines of "you have access to the source code"). I'd be willing to bet a substantial amount of money that if you were to ask 1,000 random software developers about Open Source, the OSI, and the OSD over half of them won't be able to give you a coherent answer on what these things are exactly. This is the crux of the issue, really. Who did or did not invent the term isn't necessarily all that important: the thing is that in common understanding it doesn't really have the clear specific meaning in the minds of most, whereas for others – I would argue a minority – it has a very clear and very specific meaning, which inevitably leads to friction. I guess the point of "Open Source was used before the OSI came along" is to demonstrate that it's a term that has a kind-of "obvious" meaning, and has been coined independently of the OSI's coining more than once. People don't hear "Open Source" and then consult a precise definition, they hear "Open Source" and assume it means what it says on the tin. The same applies to "Free Software", a term with 15 years more effort to explain what it means exactly, with even more limited success. It seems to me that attempting to educate a landmass about a term with an "obvious meaning" is a futile effort; there have been many language pedantics over the years, and I don't know of a single attempt that has worked out. You're welcome to try as far as I'm concerned, but it seems to me that there are many more fruitful ways to spend time and effort.

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).

api 5y ago

It’s an OSI relevance puff piece. They want to make sure they own the term.

delusional 5y ago

I understand how it can be misread though. In the documents it does seem like the court is taking a stance, but in fact it's punting on that because the two parties agree. Because both parties agree that AGPL + Common Clause can't be classified as "free and open" the court can decide if ONgDB is "free and open" by determining if it's licensed under AGPL + Common Clause. The court doesn't have to have an opinion on what "free and open" means, because the involved parties are already in agreement.

ttybird2 5y ago

OSI has been trying really hard to claim the term for themselves in a dishonest way, even though they were not the ones that invented it. https://news.ycombinator.com/item?id=26507460 https://news.ycombinator.com/item?id=26507460

bawolff 5y ago
That's not really convincing. Sure the term "open" and "source" have appeared in conjunction together previously, but it was rare for it to be used as a proper noun, instead of an adjective describing a noun, and even if it was, it was OSI that populized the term. Regardless of any historical context, in contemporary usage, "open source" has a commonly understand meaning and its what the OSI says it is. Other meanings make as much sense as pointing out that computers aren't machines, but a job title.
- Beltalowda 5y ago
  > "open source" has a commonly understand meaning and its what the OSI says it is I would contest this, based on the many discussions there have been on HN about this, as well as many people (including many "normal" software developers who are not deeply invested in open source) I've met and talked to over the years having only a vague notion of what "open source" is exactly (often being something along the lines of "you have access to the source code"). I'd be willing to bet a substantial amount of money that if you were to ask 1,000 random software developers about Open Source, the OSI, and the OSD over half of them won't be able to give you a coherent answer on what these things are exactly. This is the crux of the issue, really. Who did or did not invent the term isn't necessarily all that important: the thing is that in common understanding it doesn't really have the clear specific meaning in the minds of most, whereas for others – I would argue a minority – it has a very clear and very specific meaning, which inevitably leads to friction. I guess the point of "Open Source was used before the OSI came along" is to demonstrate that it's a term that has a kind-of "obvious" meaning, and has been coined independently of the OSI's coining more than once. People don't hear "Open Source" and then consult a precise definition, they hear "Open Source" and assume it means what it says on the tin. The same applies to "Free Software", a term with 15 years more effort to explain what it means exactly, with even more limited success. It seems to me that attempting to educate a landmass about a term with an "obvious meaning" is a futile effort; there have been many language pedantics over the years, and I don't know of a single attempt that has worked out. You're welcome to try as far as I'm concerned, but it seems to me that there are many more fruitful ways to spend time and effort.