Court erred in Neo4j decision – Software Freedom Conservancy • The Register

According to the Software Freedom Conservancy, a U.S. federal district court ruling in California favoring trade in Neoj4 databases is incorrect and puts free open-source software at risk.

Neo4j Enterprise Edition (EE) was first offered both under a paid commercial license and free under the GNU Affero General Public License, version 3 (AGPLv3). In May 2018, software version 3.4 was upgraded to AGLv3 plus additional terms of the Common clause license, which is not an open-source license and says so explicitly in its documentation.

The viability of Neo4j’s AGPLv3+Commons Clause license is in question, because taken as a whole, AGPLv3 includes language that says all added terms are removable. This view was rejected by the court – which accepts Neoj4’s right to create custom terms and resolve inconsistencies within those terms – and the Software Freedom Conservancy believes the court erred.

As The register reported last month, Neo4j and its Swedish subsidiary have filed lawsuits, filed in 2018 and 2019, against several companies that sold what was marketed as an open source licensed version of Neo4j EE under the name ONgDB – allegedly in violation AGPLv3+Commons Clause Concatenated License Terms and Neo4j Trademarks.

The Graph Foundation, one of the defendants, in February 2021 colonized with Neo4j, agreeing that it would stop calling specific versions of ONgDB, derived from Neo4j EE, a “100% free and open source version” of Neo4J EE.

In May 2021, U.S. District Court Judge Edward J. Davila, who is overseeing the Neoj4 case against PureThink and iGov – both led by John Mark Suhy to sell ONgDB – granted Neo4j’s motion for partial summary judgment. [PDF]. The decision stated that the defendants could not infringe Neo4j’s trademark and could not claim that ONgDB is open source software. Indeed, the district court said you can’t call non-open source software open source.

Defendants, PureThink and iGov, challenged that decision — the case continues to be litigated — although in February the United States Court of Appeals for the Ninth Circuit upheld the district court’s decision specifically in Regarding the lower court’s partial summary judgment, including the point about calling only open source open source software.

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The Open Source Initiative, which oversees the open-source definition and OSD-based licensing, applauded the appeals court’s decision. So did Bruce Perens, who created the definition of open source in 1997. Both welcomed the court’s acknowledgment that it is false advertising to claim a license is open source when it is not. is not.

But on Thursday, Bradley Kuhn, a policy scholar and hacker-in-residence at the Software Freedom Conservancy, challenged the district court’s partial summary judgment and its approval by the Ninth Circuit. He said he would agree that the defendants should not say their software is under a free and open source license (FOSS) if the AGPLv3 + Commons Clause combo were valid. But he argues that the two licenses cannot co-exist as published by Neo4j.

“We believe the court erred in finding that Suhy was not authorized to remove the ‘common clause,'” Kuhn wrote in a statement. blog post. “Their order prohibiting Suhy from calling the resulting code ‘FOSS’ is problematic because the underlying detention (if upheld later on appeal) could seriously harm FOSS and copyleft.”

Their order prohibiting Suhy from calling the resulting code “FOSS” is problematic because the underlying detention (if upheld later on appeal) could seriously harm FOSS and the copyleft.

Kuhn, who created the Affero clause in the AGPLv1 and co-drafted v3, claims that the AGPLv3 contains a clause that explicitly allows deletion of terms added to the AGPLv3, which Suhy’s companies argued but that the judge dismissed.

the AGPLv3 license says, “If the Program as you received it, or any part of it, contains a notice that it is governed by this License together with a term that constitutes a further restriction, you may remove that term .”

The judge, citing his earlier decision against The Graph Foundation, said [PDF] the terms of the AGPLv3 “prohibit a licensee from imposing further restrictions, but do not prohibit a licensor from doing so”. And he argues that “it would be contrary to the principles of contract law and copyright law to interpret these provisions as limiting Neo4J Sweden’s exclusive right to license its copyrighted software under the terms Of his choice”.

“It’s just wrong,” Kuhn said The register in a telephone interview. He agrees that Neo4j has the right to set its own license terms, but points out that the company specifically chose the full text of AGPLv3. And in making that choice, he argues, they cannot selectively ignore the terms of AGPLv3 when specifically declaring that their software is “subject to the terms of version 3 of the GNU AFFERO GENERAL PUBLIC LICENSE, with the Commons clause.”

“Neo4j defines ‘this license’ to mean ‘version 3 of the GNU Affero General Public License,'” he wrote in his post. “Next, Neo4j notifies all licensees that “if the Program as you received it, or any part thereof, contains a notice that it is governed by this License together with a term that constitutes an additional restriction, you can delete this term. ‘ Yet after all this, Neo4j had the audacity to claim in court that they hadn’t actually mean that last sentence, and the court agreed with that view.”

Perens in an email agreed with Kuhn’s interpretation.

“The license of Neo4J Enterprise Edition has the Affero GPL v3 (AGPLv3) license, a license with very strong sharing and sharing terms, but these were not good enough for Neo4J Inc, which added a license called the ‘Commons Clause’, which says ‘you may not sell it.'”

But AGPLv3, Perens said, includes a passage that allows additional restrictions to be removed.

“So Neo4J also gave anyone permission to remove the Commons clause from Neo4J and use it as if it were just under the AGPLv3 license,” he said. “That’s what the defendant did. The judge said he couldn’t. Now an appeals court could reverse that decision.”

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Paul Berg, a software licensing consultant who has worked for Amazon and Microsoft, among others, said The register in an email that Kuhn in his message raises salient points.

“A central issue I see here is that Neo4j is releasing a product that it owns under exclusive license terms with an unconventional license,” he said, adding that the license text “obscures those terms rather than to state them explicitly”.

“They do this by including the full text of a well-known open source license, while adding confusing and seemingly contradictory terms that directly conflict with the stated intent of the writers of the open source license,” a- he continued.

Berg argues that by structuring their license this way, they benefit from association with free and open source software without actually offering the implied assurances.

“This causes some users of their product to start designing and building their own systems under these false assumptions only to realize after committing to their design that the software is not open source,” he said. Explain. “This often results in insurmountable late migrations to another technology or accepting Neo4j’s expensive alternative licenses, a sales conversion tactic. A tactic that is severely disadvantageous to the user if the software and a negative utility.”

Berg, referring to the Log4shell incident, said there is a growing need in the tech industry for developers to integrate third-party dependencies under unambiguous licensing terms in a way that minimizes disruption to the blockchain. supply.

Software, he said, “should include clear knowledge of origin, clear license terms and transparent security information. Regardless of applicable law or existing license text, this is the ‘goal we should be aiming for and prioritizing as an industry instead of trading it for misleading branding and ill-gotten sales.’®