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I can understand the trial court's rationale. Preventing a licensor from adding clauses may have been intent of the authors of the AGPL, but they aren't in a p

I can understand the trial court's rationale. Preventing a licensor from adding clauses may have been intent of the authors of the AGPL, but they aren't in a position to enforce that. The license in question is not being called "GNU Affero General Public License + Commons Clause", which could be fought on the grounds of trademark violation — it's being called the "Neo4j Sweden Software License". There's the theoretical possibility of a copyright claim for the text of the AGPL, where the AGPL's copyright holders disallow derivative works, but I'm pretty sure that won't fly for lots of reasons: not clear who has the copyright and therefore has standing, not original enough, functional rather than creative, etc. ETA: There may actually be a trademark problem here. https://sfconservancy.org/blog/2022/mar/30/neo4j-v-purethink-open-source-affero-gpl/ https://sfconservancy.org/blog/2022/mar/30/neo4j-v-purethink... > But Neo4j consciously chose not to do that. Instead, they license their software “subject to the terms of the GNU AFFERO GENERAL PUBLIC LICENSE Version 3, with the Commons Clause”. (The name “Neo4j Sweden Software License” only exists in the later Court papers, BTW, not with “The Program” in question.)

phkahler 5y ago
>> I can understand the trial court's rationale. Agreed, there is no point or value in adding terms that can be immediately removed by the person receiving it. IMHO the FSF also went a little too far trying to dictate how people go about handling violations in GPLv3, but it's still a good license.
- rectang 5y ago
  I think we have to accept that people will reuse and modify the texts of various open source licenses in all sorts of ways which cause downstream confusion. What the FOSS community needs to ensure is that users can always differentiate between a FOSS license and a modified version which has subtle but profound changes. Our best defenses there would seem to be trademarks and social pressure. "That's not actually the AGPL, and calling it the AGPL causes confusion in the marketplace."
  - itsabug 5y ago
    In fact, modifying and updating licenses falls under what I'd consider free speech. The answer to bad license edits is not to shut them down, it's just to write better ones and convince others to use them. I may not agree with bad license edits, but I'll defend them under the right to the free speech of the developer who is shipping the code.
    - miffy900 5y ago
      What you're talking about falls under Fair Use. Free speech protections don't provide any such right.
    - michaelmrose 5y ago
      It's never been acceptable free speech to sell a fake Rolex watch or a fake Samsung TV and its not a violation of free speech to insist they call it something else. This is a really weird hill to die on.
  - api 5y ago
    All of these headaches stem from the OSI's refusal to address the problems posed by SaaS to the open source model. Their thinking is stuck in the 1980s and 1990s. SaaS is effectively a loophole. You can use 100% open source software to create something that is actually far more proprietary and that offers less user freedom than old school closed source applications. Yes the user can theoretically get the code but it's painful to operate and meanwhile the SaaS application has all the user's data. Open source is rapidly becoming free labor for closed SaaS and a tool to accelerate the lock-down of user data in the cloud rather than a tool to expand user freedom. People are trying to roll their own licenses to deal with these problems since the OSI is providing no leadership.
    - jamestanderson 5y ago
      Wasn't the AGPL created to address exactly this loophole?
      - 5y ago
lakecresva 5y ago
> There's the theoretical possibility of a copyright claim for the text of the AGPL, where the AGPL's copyright holders disallow derivative works There's also a pretty clear case for promissory estoppel since their FAQ (which is "maintained by the Free Software Foundation's Licensing and Compliance Lab") says "we will not raise legal objections to your making a modified license": https://www.gnu.org/licenses/gpl-faq.en.html#ModifyGPL https://www.gnu.org/licenses/gpl-faq.en.html#ModifyGPL
- rectang 5y ago
  But Neo4J didn't fulfill the conditions of that FAQ, particularly this: > provided that you call your license by another name
  - bombcar 5y ago
    Given that the AGPL itself uses qualifiers to be a different license from the GPL arguably adding the “with commons clause” is a different name.
    - rectang 5y ago
      That's the argument that the Commons Clause authors made — that they should be able to sponge off of the goodwill of FOSS community. It's outrageous, offensive, and I strongly suspect a losing legal argument so long as the original license name is a defensible trademark. Consider the Apache Software License version 2.0. "Apache" is a registered trademark held by the Apache Software Foundation in the US and other jurisdictions. The Commons Clause is not additive, it is antithetical to the values of the ASF and directly undermines the ASF's mission. Calling something the "Apache License with the Commons Clause" damages the interests of the ASF by introducing a confusingly named product into the market. What I have more questions about are other licenses where there's not necessarily an obvious trademark held by a willing defender. Can you call your deceptive fake FOSS license the "Common Development and Distribution License"? I'm not so sure about trademark defense there — the only option might be social pressure.

phkahler 5y ago

>> I can understand the trial court's rationale. Agreed, there is no point or value in adding terms that can be immediately removed by the person receiving it. IMHO the FSF also went a little too far trying to dictate how people go about handling violations in GPLv3, but it's still a good license.

rectang 5y ago
I think we have to accept that people will reuse and modify the texts of various open source licenses in all sorts of ways which cause downstream confusion. What the FOSS community needs to ensure is that users can always differentiate between a FOSS license and a modified version which has subtle but profound changes. Our best defenses there would seem to be trademarks and social pressure. "That's not actually the AGPL, and calling it the AGPL causes confusion in the marketplace."
- itsabug 5y ago
  In fact, modifying and updating licenses falls under what I'd consider free speech. The answer to bad license edits is not to shut them down, it's just to write better ones and convince others to use them. I may not agree with bad license edits, but I'll defend them under the right to the free speech of the developer who is shipping the code.
  - miffy900 5y ago
    What you're talking about falls under Fair Use. Free speech protections don't provide any such right.
  - michaelmrose 5y ago
    It's never been acceptable free speech to sell a fake Rolex watch or a fake Samsung TV and its not a violation of free speech to insist they call it something else. This is a really weird hill to die on.
- api 5y ago
  All of these headaches stem from the OSI's refusal to address the problems posed by SaaS to the open source model. Their thinking is stuck in the 1980s and 1990s. SaaS is effectively a loophole. You can use 100% open source software to create something that is actually far more proprietary and that offers less user freedom than old school closed source applications. Yes the user can theoretically get the code but it's painful to operate and meanwhile the SaaS application has all the user's data. Open source is rapidly becoming free labor for closed SaaS and a tool to accelerate the lock-down of user data in the cloud rather than a tool to expand user freedom. People are trying to roll their own licenses to deal with these problems since the OSI is providing no leadership.
  - jamestanderson 5y ago
    Wasn't the AGPL created to address exactly this loophole?
    - 5y ago

lakecresva 5y ago

> There's the theoretical possibility of a copyright claim for the text of the AGPL, where the AGPL's copyright holders disallow derivative works There's also a pretty clear case for promissory estoppel since their FAQ (which is "maintained by the Free Software Foundation's Licensing and Compliance Lab") says "we will not raise legal objections to your making a modified license": https://www.gnu.org/licenses/gpl-faq.en.html#ModifyGPL https://www.gnu.org/licenses/gpl-faq.en.html#ModifyGPL

rectang 5y ago
But Neo4J didn't fulfill the conditions of that FAQ, particularly this: > provided that you call your license by another name
- bombcar 5y ago
  Given that the AGPL itself uses qualifiers to be a different license from the GPL arguably adding the “with commons clause” is a different name.
  - rectang 5y ago
    That's the argument that the Commons Clause authors made — that they should be able to sponge off of the goodwill of FOSS community. It's outrageous, offensive, and I strongly suspect a losing legal argument so long as the original license name is a defensible trademark. Consider the Apache Software License version 2.0. "Apache" is a registered trademark held by the Apache Software Foundation in the US and other jurisdictions. The Commons Clause is not additive, it is antithetical to the values of the ASF and directly undermines the ASF's mission. Calling something the "Apache License with the Commons Clause" damages the interests of the ASF by introducing a confusingly named product into the market. What I have more questions about are other licenses where there's not necessarily an obvious trademark held by a willing defender. Can you call your deceptive fake FOSS license the "Common Development and Distribution License"? I'm not so sure about trademark defense there — the only option might be social pressure.