The Open Source Initiative Did Not Win Neo4j vs. PureThink

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

by joeyespo • 4 years ago

149 43 4 years ago

writing.kemitchell.com

TuringTest2• 4 years 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.

henryfjordan2• 4 years 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.

hsjshdjshs• 4 years ago

Exactly. You agreed then?

henryfjordan2• 4 years 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)

TuringTest2• 4 years 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.

rectang2• 4 years 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• 4 years 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.

remram7• 4 years ago

That makes a lot of sense. At some point there is two parts to the license that contradict each other, and no particular reason why AGPL would override Commons Clause or the other way around. The court went with the obvious intent of the licensor which is good.

AshamedCaptain• 4 years ago

(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)

This has been always the point. All GPL licenses have a similar clause.

thayne2• 4 years ago

Does Neo4j require contributors to sign a CLA? Because, if not, then as I understand it (IANAL) Neo4j isn't the original copyright holder for all of the code.

jsumrall• 4 years ago

Haven’t contributed in a long time but CLA used to be required.

hugofirth• 4 years ago

Yes they do

pie_flavor• 4 years 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• 4 years ago

I took a quick look at the procedural history of the case (see 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• 4 years 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.

bragr2• 4 years 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-so...

[2] https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_op...

remram7• 4 years 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.

chrisseaton2• 4 years 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.

fabianhjr• 4 years ago

“Free software” means software that respects users' freedom and community. Roughly, it means that the users have the freedom to run, copy, distribute, study, change and improve the software. Thus, “free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.” We sometimes call it “libre software,” borrowing the French or Spanish word for “free” as in freedom, to show we do not mean the software is gratis.

Taken from: https://www.gnu.org/philosophy/free-sw.en.html

FSF and others have long argued the opposite of your comment: free is for freedom not gratis.

pabs32• 4 years ago

Other possibilities: "freedomware" or "software freedom" or "user respecting software".

thayne2• 4 years ago

But notice that the commons clause and server side public license don't even show up on that list. There might some disagreement around where to draw the line but there is some general consensus that there is a difference between "open source" and "source available". And yet I've seen a few companies that market their product as "open source" just because their source code is on GitHub, even though the license is just as restrictive as any proprietary license.

lliamander• 4 years ago

The Commons Clause website agrees with the OSI that any license with the clause is not open source: https://commonsclause.com/

EarlKing3• 4 years ago

The OSI's position is particularly annoying since it's been proven over and over again that they didn't originate the term[1], they co-opted it from a pre-existing term and concept in the community to try to sell "free software" to businesses. They don't get to define it - then, now, or ever.

[1] https://www.arp242.net/open-source.html

cxr2• 4 years ago

There's some sleight of hand in this comment on multiple levels.

going off this table [1] there is pretty wide disagreement of what constitutes open source between different groups

Since that's not what the table represents, that's not a reasonable conclusion supported by the data in the table alone. (Coincidentally, this is the same principle undergirding Kyle's issue with OSI's post drawing unsound inferences from the Neo4J Sweden decision.)

To start with, something can be GPL-incompatible without any implication about whether it's open source or not. In the second instance, something can be approved for use in the Debian project or not, but—again—that's a separate question from "Is there any legitimacy to the position that satisfying the criteria described in the Open Source Definition is a necessary precondition to being able to call something 'open source'?" NB: maintaining mental clarity about the separation between the legitimacy of that definition and the OSI's authority to "rule" on any given "record" (i.e. the legitimacy of the OSI's power, esp. in future findings) is important. Recognizing a definition as normative is a wholly separate matter from determining who gets to adjudicate whether something meets that standard.

to claim without qualification that you alone get to define and arbitrate that seems pretty crazy to me

See, that's different even still! Agreeing that a given definition is legitimate is not the same as anointing any given group and its future findings as authoritative.

To use an example: we can agree that "fair use" is described in Title 17 and subsequent case law. In a fair use dispute, this would not be the point of contention—both parties would acknowledge this. Which party would prevail in their action, however, would depend on a finding of fact by the courts: how the definition applies to the parties' circumstances—not whether the definition is legitimate.

bragr2• 4 years ago

Agreeing that a given definition is legitimate is not the same as anointing any given group and its future findings as authoritative.

Clearly you didn't read the OSI blog post that this blog post is referencing

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.

https://opensource.org/blog/court-affirms-its-false-advertis...

phendrenad2• 4 years 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• 4 years 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/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.

The Open Source Initiative Did Not Win Neo4j vs. PureThink

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