7 ms·

The Open Source Initiative Did Not Win Neo4j vs. PureThink

149 points by joeyespo 5y ago

TuringTest 5y ago
I don't get why this text says AGPL's section 10 would "allows removal of additional restrictions". But AGPL's section 10 does not such thing, it forbids imposition of any further restrictions - which is somewhat the opposite.
- henryfjordan 5y ago
  I think the author meant section 7: > 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. If a license document contains a further restriction but permits relicensing or conveying under this License, you may add to a covered work material governed by the terms of that license document, provided that the further restriction does not survive such relicensing or conveying.
  - deleted 5y ago
    [deleted]
  - hsjshdjshs 5y ago
    Exactly. You agreed then?
henryfjordan 5y ago
Further even, the OSI and FSF lost in that the courts upheld that you can add the Commons Clause to the AGPLv3 despite the AGPL having a clause saying further restrictions can be ignored. (It gets a little complicated, I believe the reasoning was that Neo4j could only add the commons clause as the original copyright holder/licensor, no sub-licensor could add it)
- TuringTest 5y ago
  I really hope it works that way. Of course the original licensor can distribute their software under any terms they like; even if the license looks similar to the AGPL3 license for the most part, the Commons Clause turns it into a totally different license. It would be extremely worrisome that the court admitted sub-licensors to add something like the Commons Clause to software they get under the GPL-like licenses; it would completely invalidate them for all purposes, turning them into MIT-like permissive licenses instead.
- rectang 5y ago
  It's legit to combine the text of an open source license and the text of the Commons Clause. However, if you try to do that with e.g. the Apache License Version 2.0, the Apache Software Foundation won't let you abuse their registered trademark and call it "Apache 2.0 + Commons Clause", because the result is incompatible with the spirit of the Apache License 2.0. I believe that similar reasoning would apply to the AGPL.
  - zarzavat 5y ago
    I would like to see that court case. It seem to me it would be fair game to refer to your software as Apache license 2 + XYZ Clause as long as you make clear that XYZ Clause is not part of the Apache 2 license. It’s generally not against trademark law to refer to a combination of things. I can say that I use Microsoft Windows + Adobe Photoshop, as long as I don’t claim that Photoshop is part of Microsoft Windows, no trademark confusion will result. What might get you in trouble is to modify the Apache license text itself to add an additional clause in the middle somewhere, or to call that modified version it “Apache 2 licensed” without any qualification.
    - rectang 5y ago
      All of the high-profile orgs I am aware of who once called their licensing "Apache + Commons Clause" have since changed the names of their licenses to something else. The argument that "Apache + Commons Clause" is a "combination" is straightforward to counter. The "Commons Clause" is not additive — it fundamentally changes the license, making it more restrictive and taking away potential uses. Consumers could not count on being able to do the things with software under such a license that they would ordinarily expect to be able to do with "Apache" licensed software, which damages the "Apache" brand. In any case, it's not clear that it's worthwhile to go up against a sympathetic defendant like the ASF and make such an argument for limited benefit.
pie_flavor 5y ago
One thing this article doesn't mention, which I had mentioned on the previous thread, is that this really feels like 'false advertising' was used because they couldn't make 'copyright violation' stick. If so, this is the exact opposite of a victory for OSI, as the court judged in favor of the guys making things not-open-source and against the guys trying to make it open-source.
- jcranmer 5y ago
  I took a quick look at the procedural history of the case (see https://www.courtlistener.com/docket/16272543/neo4j-inc-v-purethink-llc/ https://www.courtlistener.com/docket/16272543/neo4j-inc-v-pu...). In the original filing, there were only essentially trademark complaints, although this was later amended to include a copyright complaint. The request for summary judgement didn't ask for summary judgement on all of the claims--only the trademark claim. Thus, the copyright violation bits are still a live controversy (undergoing discovery for roughly the next several months) and would presumably be resolved by the actual jury trial requested, whenever that comes about.
dataflow 5y ago
I don't see how the OSI can move past this incident without losing credibility for their position on the meaning of "open-source". If you're trying to convince people that "open-source" genuinely means something different than what they might otherwise have thought, I would think it kind of undermines your position when you get caught twisting the meanings of other words in the process of finding support for your position.
bragr 5y ago
Just going off this table [1] there is pretty wide disagreement of what constitutes open source between different groups, so to claim without qualification that you alone get to define and arbitrate that seems pretty crazy to me. Like either you are stuck in an echo chamber or you've lost sight of the difference between yourself and the community e.g. if you aren't with us you are against open source. Either way, it does not make me want to use the OSI my north star. Not sure who elected them kings of open source. One could argue that the list of licenses on Wikipedia is more reflective community consensus since, in theory at least, it is the product of a lot of debate and consensus from many contributors.[2] [1] https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licences#Approvals https://en.wikipedia.org/wiki/Comparison_of_free_and_open-so... [2] https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_open-source_software_licences https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_op...
- deleted 5y ago
  [deleted]
- remram 5y ago
  I guess that is fair, or arguably fair. What would be a better name for it? "Free software" is similarly loaded ("free software is like free beer, software you don't pay for", "open source is like open house, you can get in the source"). Maybe "libre software"? "Permissive software"? The full "FOSS" or "FLOSS" acronyms? Should we stick to specific license names e.g. "GPL software" or "MIT software"? That's probably the safest as those usually include an actually recognized trademark.
  - chrisseaton 5y ago
    If you care what the OSI thinks, then say 'OSI Approved Licensed Code' - you can already use that, and it's already protected by their registered trademark.
    - remram 5y ago
      What if I don't particularly care?
phendrenad2 5y ago
Thank you. Open-source foundations are too quick to interpret legal matters in their preferred light, as though law is something they can sway in their favor if they get enough people to misinterpret it the same way they do.
john-mark 5y ago
Funny to see people talking about the case. I thought it was interesting that the 9th circuit made so many mistakes that they had to append the ruling. The fact that they got the defendants wrong is quite strange to me. The Graph Foundation was not part of the case any longer. They joined the case but then settled. The injunction itself that Neo4j was very sloppy when adding the commons clause into the AGPL. They literally added the commons clause to the AGPL, leaving in the preamble and all, and call it the ‘Sweden License’. (Virtual name) https://raw.githubusercontent.com/neo4j/neo4j/3.4.18/enterprise/neo4j-enterprise/LICENSE.txt https://raw.githubusercontent.com/neo4j/neo4j/3.4.18/enterpr... This ‘sweden license’ literally states it is a ‘free, copyleft license.’ copyleft = opensource according to Philip Rathle, Vice President of Products at Neo4j Inc. (6-ER-1368 ¶¶ 10-11 of appeal except of records). Therefore according to Neo4j - it is free and open source. Neo4j says their 'Sweden License' (AGPL + Commons) is both open source and not open source at the same time. I call this: 'Schrödinger's Sweden License' Keep an eye on the case - it is now in the second phase of the case where everyone will learn about Neo4j’s behavior. It would make a good Netflix mini series.

149 points by joeyespo 5y ago

I don't get why this text says AGPL's section 10 would "allows removal of additional restrictions". But AGPL's section 10 does not such thing, it forbids imposition of any further restrictions - which is somewhat the opposite.

henryfjordan 5y ago
I think the author meant section 7: > 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. If a license document contains a further restriction but permits relicensing or conveying under this License, you may add to a covered work material governed by the terms of that license document, provided that the further restriction does not survive such relicensing or conveying.
- deleted 5y ago
  [deleted]
- hsjshdjshs 5y ago
  Exactly. You agreed then?

henryfjordan 5y ago

Further even, the OSI and FSF lost in that the courts upheld that you can add the Commons Clause to the AGPLv3 despite the AGPL having a clause saying further restrictions can be ignored. (It gets a little complicated, I believe the reasoning was that Neo4j could only add the commons clause as the original copyright holder/licensor, no sub-licensor could add it)

TuringTest 5y ago
I really hope it works that way. Of course the original licensor can distribute their software under any terms they like; even if the license looks similar to the AGPL3 license for the most part, the Commons Clause turns it into a totally different license. It would be extremely worrisome that the court admitted sub-licensors to add something like the Commons Clause to software they get under the GPL-like licenses; it would completely invalidate them for all purposes, turning them into MIT-like permissive licenses instead.
rectang 5y ago
It's legit to combine the text of an open source license and the text of the Commons Clause. However, if you try to do that with e.g. the Apache License Version 2.0, the Apache Software Foundation won't let you abuse their registered trademark and call it "Apache 2.0 + Commons Clause", because the result is incompatible with the spirit of the Apache License 2.0. I believe that similar reasoning would apply to the AGPL.
- zarzavat 5y ago
  I would like to see that court case. It seem to me it would be fair game to refer to your software as Apache license 2 + XYZ Clause as long as you make clear that XYZ Clause is not part of the Apache 2 license. It’s generally not against trademark law to refer to a combination of things. I can say that I use Microsoft Windows + Adobe Photoshop, as long as I don’t claim that Photoshop is part of Microsoft Windows, no trademark confusion will result. What might get you in trouble is to modify the Apache license text itself to add an additional clause in the middle somewhere, or to call that modified version it “Apache 2 licensed” without any qualification.
  - rectang 5y ago
    All of the high-profile orgs I am aware of who once called their licensing "Apache + Commons Clause" have since changed the names of their licenses to something else. The argument that "Apache + Commons Clause" is a "combination" is straightforward to counter. The "Commons Clause" is not additive — it fundamentally changes the license, making it more restrictive and taking away potential uses. Consumers could not count on being able to do the things with software under such a license that they would ordinarily expect to be able to do with "Apache" licensed software, which damages the "Apache" brand. In any case, it's not clear that it's worthwhile to go up against a sympathetic defendant like the ASF and make such an argument for limited benefit.

pie_flavor 5y ago

One thing this article doesn't mention, which I had mentioned on the previous thread, is that this really feels like 'false advertising' was used because they couldn't make 'copyright violation' stick. If so, this is the exact opposite of a victory for OSI, as the court judged in favor of the guys making things not-open-source and against the guys trying to make it open-source.

jcranmer 5y ago
I took a quick look at the procedural history of the case (see https://www.courtlistener.com/docket/16272543/neo4j-inc-v-purethink-llc/ https://www.courtlistener.com/docket/16272543/neo4j-inc-v-pu...). In the original filing, there were only essentially trademark complaints, although this was later amended to include a copyright complaint. The request for summary judgement didn't ask for summary judgement on all of the claims--only the trademark claim. Thus, the copyright violation bits are still a live controversy (undergoing discovery for roughly the next several months) and would presumably be resolved by the actual jury trial requested, whenever that comes about.

dataflow 5y ago

I don't see how the OSI can move past this incident without losing credibility for their position on the meaning of "open-source". If you're trying to convince people that "open-source" genuinely means something different than what they might otherwise have thought, I would think it kind of undermines your position when you get caught twisting the meanings of other words in the process of finding support for your position.

bragr 5y ago

Just going off this table [1] there is pretty wide disagreement of what constitutes open source between different groups, so to claim without qualification that you alone get to define and arbitrate that seems pretty crazy to me. Like either you are stuck in an echo chamber or you've lost sight of the difference between yourself and the community e.g. if you aren't with us you are against open source. Either way, it does not make me want to use the OSI my north star. Not sure who elected them kings of open source. One could argue that the list of licenses on Wikipedia is more reflective community consensus since, in theory at least, it is the product of a lot of debate and consensus from many contributors.[2] [1] https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licences#Approvals https://en.wikipedia.org/wiki/Comparison_of_free_and_open-so... [2] https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_open-source_software_licences https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_op...

deleted 5y ago
[deleted]
remram 5y ago
I guess that is fair, or arguably fair. What would be a better name for it? "Free software" is similarly loaded ("free software is like free beer, software you don't pay for", "open source is like open house, you can get in the source"). Maybe "libre software"? "Permissive software"? The full "FOSS" or "FLOSS" acronyms? Should we stick to specific license names e.g. "GPL software" or "MIT software"? That's probably the safest as those usually include an actually recognized trademark.
- chrisseaton 5y ago
  If you care what the OSI thinks, then say 'OSI Approved Licensed Code' - you can already use that, and it's already protected by their registered trademark.
  - remram 5y ago
    What if I don't particularly care?

phendrenad2 5y ago

Thank you. Open-source foundations are too quick to interpret legal matters in their preferred light, as though law is something they can sway in their favor if they get enough people to misinterpret it the same way they do.

john-mark 5y ago

Funny to see people talking about the case. I thought it was interesting that the 9th circuit made so many mistakes that they had to append the ruling. The fact that they got the defendants wrong is quite strange to me. The Graph Foundation was not part of the case any longer. They joined the case but then settled. The injunction itself that Neo4j was very sloppy when adding the commons clause into the AGPL. They literally added the commons clause to the AGPL, leaving in the preamble and all, and call it the ‘Sweden License’. (Virtual name) https://raw.githubusercontent.com/neo4j/neo4j/3.4.18/enterprise/neo4j-enterprise/LICENSE.txt https://raw.githubusercontent.com/neo4j/neo4j/3.4.18/enterpr... This ‘sweden license’ literally states it is a ‘free, copyleft license.’ copyleft = opensource according to Philip Rathle, Vice President of Products at Neo4j Inc. (6-ER-1368 ¶¶ 10-11 of appeal except of records). Therefore according to Neo4j - it is free and open source. Neo4j says their 'Sweden License' (AGPL + Commons) is both open source and not open source at the same time. I call this: 'Schrödinger's Sweden License' Keep an eye on the case - it is now in the second phase of the case where everyone will learn about Neo4j’s behavior. It would make a good Netflix mini series.