Edit: After reading the applicable sections of the trial court ruling, it is no different - the court simply accepted the plantiff and defendant's shared use of the term. It didn't reference OCI or FSF or any other authority.
Absolutely they should control the term. Just look at all of the companies out there with "source-available" licenses masquerading as Open Source. Neo4j themselves here uses "Open Source" in all of their marketing materials and should be just as guilty as this fork of false advertising.
Their attempt to occupy the term is a little offensive.
Correction: They came up with the name, so it's theirs. I'll leave my public embarrassment here.
Debian and Red Hat have their own teams determining whether something is Open Source enough to allow into their distributions, and obviously the Free Software Foundation keeps their own list of licenses which they consider Free Software.
If these groups of people disagree on whether a particular license is Free/Open Source software, it's not going to be considered an Open Source license by everyone.
Open Source is a pretty dumb term. Free Software is also a dumb term for other reasons. It's a pity.
Open source is a prerequisite for truly free (as in speech) software, but the opposite is not.
That's "source available". "Open Source" is widely understood to mean a bunch more, captured in the "Open Source Definition": https://opensource.org/osd
However, the courts ruled upon the composite term "open source and free". Under the OSI definition, open source implies free. But no court has yet so ruled.
OSI is claiming that the term "open source" is what is false advertising. But both the trial and appellate courts are specifically calling out the phrase "open source and free" as false advertising. Neo4j EE and ONgDB may be "open source," but they are definitely not "free."
If the defendants had only claimed that ONgDB was "open source" they might not have had any issues. But because they removed the Commons Clause and also declared it "free," they are in violation of the original license of Neo4J EE, a license which is still in force, and a license which is not "free."
It's not really about any of that. If you read the court opinion, it's basically copyright protection infringement on the basis that someone copied a product and changed the licensing in violation of the original license. The false advertising claim is on the basis that the duplicate software is free and open source, because it can't be free and open source if the original license forbade that.
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.
> 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).
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.
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.
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.
"this unlicensed project is closed source, source code is free to browse >here<"
I'm thinking of launching one of our project in open source but don't want to end up in this kind or articles ^^
- Understanding Open Source and Free Software Licensing[1]
- Open Source Licensing[2]
And then Producing OSS[3] also contains a (very) brief section on choosing a license. It's worth reading though, for other reasons.
[1]: https://people.debian.org/~dktrkranz/legal/Understanding%20O...
Other licenses may be open source, but you'd probably have to get lawyers involved to make sure. So it's better to just pick a license which the OSI considers Open Source.
If you don't want to rely on just the OSI, you can also check what the Free Software Foundation, Debian and Red Hat think of the license you've picked.
https://www.oreilly.com/library/view/intellectual-property-a...
It will help you understand the relevant parts of the law (copyright, patent, trademark) as well as helping to differentiate between various types of Open Source licenses.
If his definition has shifted, it might be entirely correct to say he's wrong.
You can also accept his general definition but validly disagree with how exactly to apply it.
Inventing a term gives you a lot of authority but not total control over what it means.
They are the Open Source Initiative, stewards of the Open Source Definition.
The closest I see is a rule then when you're using the OSI trademark or logo you need to follow their definition of "Open Source".
> 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://opensourc...
> 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.
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.33...
2. https://storage.courtlistener.com/recap/gov.uscourts.cand.33...
Could this be used as precedent if you release software and claim that it's open-source, but don't provide full source or even any source at all? Probably not IMHO.
In the case of AGPL, you have an original open source release A that is forked to create B, and restrictions are added to the license of B. The original license of A permits those restrictions to be removed by someone who forks B into C. C is under no obligation to abide by those additional restrictions added by B.
But for that rule to apply in this case, the original code must have been licensed without such restrictions. If the original code, as in the case of Neo4j EE, was licensed under AGPL+Commons Clause, then that combination IS the original license. Downstream forks cannot remove that Commons Clause restriction and claim that the fork is "Free," because the original license is still in force, restrictions and all.
That would be unfortunate, because there are companies that claim their products are "open source" even though they clearly aren't. For example pritunl markets their product as open source on their website, but while the source code is available on github, it is licensed with a proprietary license that doesn't let you do basically anything with that source code.
- the plaintiff's software was under the AGPL+Commons, which makes it non-open-source
- the defendants copied the software, re-releasing it under bare AGPL, under the clause that says you can remove upstream restrictions
- that clause is actually about licensees, and the plaintiff isn't a licensee, they're a copyright holder. So the defendants had no right to remove it and their version can only be, and therefore is, subject to the Commons Clause too
- their declaration of being open source would have been valid if they had the right to license the work as they did, but they didn't, so it's not open-source
I assume that the plaintiff couldn't figure out a way to make a copyright license violation accusation stick, so they went after them for false advertising instead, and the judge judged it with the intensity of a copyright license violation because he knew the score too. This seems like a bizarre train for the OSI to leap on because it doesn't further anything about open-source and only furthers the interests of people who aren't.
The AGPL does not use that wording, but the court chose to interpret it that way because the alternative interpretation that a licence could restrict how the original licensor can convey their work was deemed to incompatible with the principles of contract and copyright law.
Shouldn't Neo4j be sued as well for falsely claiming to be open source then?
Whoever sued these folks for false advertising should sue Neo4j as well.
How does that work? It would seem like false advertising to claim I have to upgrade to remove their arbitrary limitations. I don't see how they legally enforce those limitations since they are licensing under a vanilla GPL v3.
I don't get how so many companies say they are "open source" but there's not a single line of uncompiled code available even on request.
The only thing it really addresses about the licensing, is that the license permits downstream users to remove additional terms added by upstream licensees. So original licensing of the licensor (adding the Commons Clause) is not allowed to be removed by a licensee as it doesn't fit the definition of an additional term.
How can it be legal to advertise a food products and the delivered results are nothing like what was advertised. Imagine a car sales person doing the same thing.
Had they not claimed they were “100% free and open source”, surely they’d have been able to change the license as they saw fit? Yes?
