FYI: An appeals court may kill a GNU GPL software license At some point in the months ahead, the United States Court of Appeals for the Ninth Circuit will consider an effort to reverse a California federal district court's decision in Neo4j v. PureThink. If the appellate court upholds that decision, which endorsed database maker Neo4j's right to amend the GNU Affero General Public …
Let me see if I get this straight. The FSF wanted this guy to pay damages and have his life destroyed because that does not set a legal precedent. Instead, the guy says he can't have his life destroyed without even fighting for it. Makes sense. Seeing that he's adamant on the appeal, FSF thus decides... to not help him at all, letting him go through with an appeal without any means to realistically have a fighting chance. An appeal which if (when?) it fails will be the first domino piece to kill the GPL. I see.
https://tenor.com/view/it%27s-fine-im-fine-its-fine-im-fine-fine-everything-is-fine-gif-4044255692100841679
The problem as always is that organisations tend to do the expedient thing, rather than the correct thing, even if it tosses the very people under a bus who it was originally intended to protect
Yes, I get the risk of appealing in the current US court climate, but in such a case if FSF want him to NOT appeal then they should be willing to indemnify all his losses
Well, IANAL but I have a pretty good understanding of these things, FWIW and all that...
First, the 9th Circus Court is one of THE most overturned court jurisdictions in the USA (if not THE most). These S.F. based "judges" (read: activists) seem to go with FEELINGS and legislate from the bench instead of applying COMMON SENSE, more often than not.
The Supremes, however, would PROBABLY weigh the case on the merits of the GPL. "Is it reasonable for the GPL to compel those who modify the licensed code to keep it under the same license" AND "Is it reasonable to compel those who distribute it in binary form to make it available in source code form under the SAME license" ???
On the first, the user had to agree to the license to be able to use and modify it. Therefore it should be cut and dry.
On the second, is the user allowed to distribute using a DIFFERENT (or modified) license? This may be gray but if the Supremes keep their heads out of their asses, you can make the case that the person modifying the code AGREED to these terms in the license as well, to re-distribute under GPL and NOT modify the license terms. This would include a provision to allow removal of more restrictive terms under AGPL.
So NOW, as feared, GPL legitimacy MAY be on trial, unless conservative judges continue common sense interpretations and liberal judges do not FEEL instead of THINK. But you never know. On the side of freedom they might decide the GPL to be TOO restrictive, and question ALL software licensing requirements, which is unlikely but possible.
I'd rather just use common sense and stick with the INTENT of the GPL. Stupid L[aw]YERS!
BB sez:
First, the 9th Circus Court is one of THE most overturned court jurisdictions in the USA (if not THE most).
Actually, that distinction goes to the 5th Circuit -- you know the one in Tejas. You wanna talk about "activist judges"*...
*You probably don't, because you'd have to acknowledge the fact that so-called "conservative", "common-sense" judges are also quite "activist" these days (ref: U.S. District Judge Matthew Kacsmaryk, and of course, Sam Alito, and the Faithful Lapdog Clarence), but you wouldn't want to do that because it would contradict the narrative.
If an entity wants to modify the license, it's no longer a GNU GPL license and they should be required to call it something else. If they've used other GNU components that they've extended/modified, they can either use the license as it applies or redo everything so it isn't going to infringe. I can't see where it's proper to change the license as its supposed to continue to apply as originally implemented throughout the whole chain of the original code's existence.
The wording in the article is odd. It is the 9th District Federal Court in California. Not the "California Federal court" which makes no sense. Being in the SF bay area, it does seem to gather a fair number of judicial weirdos that have their own interpretations of the laws as written along with ignoring existing precedence.
All of this is rather extra-Copyright sorts of stuff since it's not in Copyright law where things have no grey areas that the GNU licenses provide. That makes the arguments more contractual rather than having anything to do with Copyright.
You are way off - he didn't violate the terms of the license. You should read up on the case. Neo4j tried to add restrictions to AGPL license leaving in the FSF copyright and preamble.
The preamble says the license has to be verbatim. Suhy made it verbatim - and Neo4j essentially said that by making it verbatim it removed some sentence or 2 that said Neo4j makes this software and to see Notice.txt. (They call that CMI).
Read it for yourself - seems like FSF agrees that Suhy was doing what was right.
https://storage.courtlistener.com/recap/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee.55.2.pdf
He earned $0.00. He promotes open source over proprietary - and Neo4j lost big money because he let big agencies know they could use open source. It costs Neo4j $19M is lost contracts.
If you are familiar with Neo4j - you would understand just how far they go to scare people away from using open source versions of Neo4j for anything but playing with it. They should have just been closed source the whole time, but then - they wouldn't be where they are if they did that.
Neo4j must know they are in the wrong after they received this Cease and Desist letter from the Free Software Foundation. Ironic that they were forced to do exactly what they sued for. US law at its best!
https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.263.1_2.pdf
Not quite. The FSF, in that cease and desist letter and in their recent brief to the court told them, correctly in my view, that their use of the AGPL was violating the terms they placed on it. The FSF could have sued them for misusing the name, and I think they would have had a strong case, though not a guaranteed one as the license text was not modified. The additional clause was appended and referenced at the top, which isn't necessarily the same if Neo4J wanted to try arguing that, which they didn't as demonstrated by the fact that they changed the name.
However, this doesn't prove either way whether their inept Frankenstein's license is valid or not, or rather, since it is self-contradictory, which part of it is valid. The FSF's brief to the court intends to support the SFC's brief. It conclusively establishes what the FSF's intent was when they wrote the AGPL, which Neo4J decided to question for some reason I don't know because it should have been obvious to Neo4J what the FSF wanted, because that's why they wanted to change their license away from it. At this point, we have conflicting intents: what the FSF wanted when they wrote the AGPL, and what Neo4J wanted when they wrote their additional clauses. The court has to decide whether Neo4J was able to enforce their intent with the contract they wrote, and so far, they seem to say that the answer is yes. The FSF having a good license violation case is not sufficient to prove that Neo4J's license terms are invalid.
Hasn't it been the case for years that the tenor was "OSS licenses need to prove their mettle in court, and the we will see that evil corps(tm) can't simply take the code and run off with it" - and now that moment seems to have come, and the FSF would rather not take that risk?
Is that a case of "open source is legally safe as long as nobody actually takes that legality up in court"?
Most commercial infracters have simply settled out of court. Which means that corporation's own expensive lawyers have said "we aren't going to win this one".
Which is perhaps a better precedent than a bunch of no-good commie hippy open-source users losing an E Texas jury case to some God-fearing patriotic American MegaCorp
Yes, but in most cases the breach has been egrarious and indisputable
What's at issue here is that the unalterable licence has been altered, with the plaintiff claiming that the license as originally issued was overly restrictive to their way of doing business and not legal under US law
I can't see how that will fly, but American courts have demonstrated over the last few decades that what matters most is who has the deepest pockets
As a lawyer friend of mine oft says "It's not a justice system. It's a LEGAL system. Assuming the law has anything to do with fairness or justice is a fundamental error"
As I understand it, the specific issue at hand is now moot in that Neo4j comes with either a GPLv3 licence (community edition) or a fully commercial licence for the enterprise edition.
I am not a lawyer, but what seems to me to be going on here is an argument that once code has been released under (A)GPL terms then it can never been relicensed more restrictively because the more restrictive licence terms can simply be removed under the terms of the original licence. It would appear reasonable to me that you can't arbitrarily relicense a version of software that has already been released under a less restrictive licence (and the earlier versions of Neo4j remained available under their original licences) but I can't help feeling it would be to the ultimate detriment of Open Source if you could then never release new versions on a more restrictive basis (effectively the former Microsoft "cancer" argument).
It's worth reading the original judgment as there's relevant background that casts the dispute in a rather different light.
However, the conclusions of the court case are not necessarily as they at first appear and there's an interesting summary from a lawyer that explains why. It may not be a GPL software licence that's at stake, but a specific interpretation of a GPL software licence that might perhaps have been optimistic.
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.
That is the kind of clause that is routinely ruled invalid in many contracts. I think the court can take exception to an attempt to preempt the law in such a way. There is also more than a little irony in any GPL licence talking about "restriction" because compared with most open source licences, all GPLs are considerably more restrictive.
> There is also more than a little irony in any GPL licence talking about "restriction" because compared with most open source licences, all GPLs are considerably more restrictive.
Irony? In the GPL?
Well, YES! I'd even add a "duh!" to that "yes".
From day one, the entire purpose of the GPL has been to explicitly use one set of restrictions - those applied to the (third-party) supplier of software - to remove restrictions set upon the receiver of the software.
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.That is the kind of clause that is routinely ruled invalid in many contracts.
Charlie Clark,
Why should that be considered objectionable? I'll start by saying I'm no expert in law, contract or otherwise - also not an expert on open source either.
However contracts do routinely specify what should happen if a particular clause of the contract turns out to be invalid for some reason. In this case the GPL prevents you from stripping it from derivative works and re-issuing them under a changed license and so then adds in a clause to say that if you do so, then your customer is still bound by the original license terms that you were (and have just broken) and so can ignore what you did and carry on using the contract as originally specified - ignoring those extra clauses that you added in - and in that case it specifically tells you what to do. Which is to strike those clauses out.
That looks to me like a pretty standard bit of contract writing. Admittedly used in an odd way, but then that's because of what the GPL is trying to do.
I'm not talking about the rights assigned to the user in the original license, but the far more broadly defined attempt to prevent additional "restrictions" being applied, without defining what such restrictions might be. This is an invitation to a court to decide what such restrictions might be or, as I said, whether the entire clause is unworkable. For examples, see the many EULAs that, depending upon jurisdiction, are frequently declared invalid because of similar clauses.
The problem is that it could be used to eliminate other contracts, which could be a problem. Consider an extreme example. I am paying you to write some code into an AGPL-licensed program for me. You've agreed to use that license on the stuff you're developing for me. Once you finish writing it and making it available, I take it and announce that the contract we made which involves me paying you for this is an additional restriction, so under the terms of the AGPL, I am choosing to remove that restriction. Can I do that? This depends on whether the court agrees that this is a restriction on the software, which they might not, but the line is ambiguous enough that that's not guaranteed. With an example as extreme as this, the chances are good that they would throw that out, but with something smaller, they might not.
The bigger question they'd have to answer there is whether a software license can invalidate other, possibly separate contracts. Most of the time, it can't. In contracts where they specify that one document will prevail over another, those documents are two parts of a single contract, for example the permitted use policy of a service and the contract where you say you'll pay them, which you agree to at the same time. Contracts generally don't get to proclaim themselves superior to other contracts, because what would happen if my additional terms say that "if you want to distribute modified versions under a license that isn't the AGPL, you may remove that term"? Which term or terms are you allowed to remove at will?
Interesting summary.
1. It seems reasonable that the original publisher can release code under whatever licence or combination of licences they see fit and downstream can't use a clause from one licence to remove the other licence if it was released under a combination of licences. That's the original publisher's prerogative.
2. If it isn't obvious by now that the OSI is just yet another industry lobbying group whose main purpose is to allow its funders to help themselves to as much open source code as possible then it never will be.
> 1. It seems reasonable that the original publisher can release code under whatever licence or combination of licences they see fit and downstream can't use a clause from one licence to remove the other licence if it was released under a combination of licences. That's the original publisher's prerogative.
That is a misrepresentation of the situation. Or a very confusing way of phrasing it.
> whatever licence or combination of licences
That implies that you are referring to dual licensing, which is absolutely fine and dandy: vendor gives you the choice of two distinct licences, A and B, sitting in entirely different files and/or piles of paper; you pick the one you prefer and are bound by that.
> use a clause from one licence to remove the other licence
If you understand dual licensing then you are now saying that there is an attempt to use a clause from licence A to remove a clause from the text of licence B.
What is actually happening is that licence A has been modified to create A' by the addition of an extra clause. BUT licence A states that you the extra clause is of a form that can not be tacked onto it (note: it is not restricting the addition of *any* new clause, just those that fail the conditions laid out in licence A). And the wording of A' still contains that restriction - A' now contradicts itself. In all of this arguing over A and A', licence B has been and remains untouched.
That's true, but you could argue that they didn't license their work under the AGPL there. They licensed it on their own non-open license where they copy and pasted the text from the AGPL and stuck extra things in. That is not a good way to write a license, but they evidently chose it. If that's what they did, then the term from the AGPL doesn't let you remove anything that wasn't the AGPL, it now allows you to remove any term that wasn't compatible with their modified built-on-AGPL.
This is where I'd be doing something boring like seeing if they claimed their license was the AGPL. If they said it was their new license which just happened to share most of its text with the AGPL, then I don't think that lets you reset the terms. This works in the same way that a license I've used, which was a lot like the MIT license but they added a couple of things I didn't like wasn't MIT, but they didn't say it was, so I couldn't exactly blame them for making their own.
Some more context on that. They seem to have decided they needed to do exactly what I describe: give their license a new name. This version can be found here. Were this the only version, I'd agree with the court unreservedly. It isn't that clear, but neither is it clear on the other side, when we look at the 2018 version which is at issue.
They say up front that this is not the unmodified AGPL:
The software ("Software") is developed and owned by Neo4j Sweden AB
(referred to in this notice as “Neo4j”) and is subject to the terms
of the GNU AFFERO GENERAL PUBLIC LICENSE Version 3, with the Commons Clause as follows:
The FSF does not want that called the AGPL3, and I don't either. I'm not sure we can make that desire legally binding because it is all the text of the AGPL3, but I disapprove of it. For that matter, I disapprove of the Commons Clause in all its forms, so I'm not an adherent of Neo4j. Still, if I'm analyzing the merits of the court case, it's hard to claim that they weren't explicit when this is right at the top.
One thing that works against Neo4J here is that they failed to change this line:
"This License" refers to version 3 of the GNU Affero General Public
License.
Without being explicit, that would suggest that you can in fact use 7.4 (which refers to "this license") to reset it to the original AGPL minus the Commons Clause. So now we have two contradictory elements of the license, one saying that the clause applies and one saying it doesn't have to. That was clearly not what Neo4J intended, and I think anybody forking knew that, but it means there isn't an obvious answer, even if I might want a specific interpretation.
Neo4J could have easily gotten themselves out of it, but their failure to do so doesn't prove that they're wrong. I'm also not convinced that a court's decision on this will affect the rest of the AGPL or the many places where it is used without modification. This license contradicts itself, whereas the AGPL doesn't. I think it will continue to stand even if Neo4J wins this case.
> 2. If it isn't obvious by now that the OSI is just yet another industry lobbying group whose main purpose is to allow its funders to help themselves to as much open source code as possible then it never will be.
I don't much like the OSI, from what I've seen so far[1] they are mainly a bunch of grandstanders who make claims about inventing the idea of open source (nope, they didn't) and that their published collection of licences is in some way super duper special. But I don't see what "helps themselves to ..." is meant to be talking about.
The OSI have bugger all relevance to this case. It would be great if they did put up funds, but they don't provide funding for anything useful, so why expect them to start now?
[1] which is clearly not everything they've done, so if anyone has some references for the OSI "helping themselves" to open source and how what they then do with it is detrimental, I'd love to see said refs.
As far as I know, the only OSI involvement with this case was their happiness when it was declared that Neo4J's license is not open source. This has earned them a lot of annoyance, because what the court really said was that PureThink could not apply the unmodified AGPL but had to use Neo4J's version, Neo4J's wasn't open source, therefore theirs wasn't either. The OSI expressed happiness about something that was unrelated to whether this license was accepted or not, but because they seemed happy when PureThink was defeated, people assume that the OSI oppose PureThink or did something to engineer the ruling.
What OSI is happy about is a good thing, because it acts against other companies who think they can claim to have open source software when they don't. It is also not harmful to PureThink, because if they win the case, then they will use AGPL and that will be open source.
... an argument that once code has been released under (A)GPL terms then it can never been relicensed more restrictively ...
[IANAL] My understanding of things is that a copyright holder can issue copies under whatever [reasonable] terms they choose and it is quite reasonable to license copies given to different parties differently.
Thus making an open/free copy widely available under one set of licensing terms does not preclude them also making it available under other terms. The fact that a copy has been made available under these other terms does not cancel the rights of others to use what they have.
As copyright holders they could also modify the software or use it as a base for another product and provide that under a commercial licence. If the modification has not been made available under an open/free terms then others cannot simply apply the open/free terms to the modified software. They still have the right to use the unmodified software under the open/free terms.
Things like the GPL also have a copyright - so somebody using that licence text as the basis for their licence might run into copyright issues unless the GPL text is itself published under terms that allow it to be used in the way they are using it.
I do not know which points are being argued in the case before the courts, and not being a lawyer maybe I don't just need a legal team, I need the Eagle Team.
Dual licensing is fairly common and, if done by the copyright holder, perfectly ok.
And, yes, the licences themselves are copyright - and the AGPL, for example, is very clear that your licence to copy it is restricted to verbatim copies only. Right at the start of the text. Which causes - discussions - when somebody issues a blanket "every file in our repo must start with the following boilerplate of our copyright", including the company name etc, and that is blindly done to the file containing the licence itself...
If the software was written entirely by Neo4j then I can see that they are free to licence or any way they like. If that is the case then I think they have just been sloppy by taking an existing licence that explicitly says it can’t change it …. And changing it! It’s sloppy and bound to confuse, but I can’t actually see anything wrong in it.
If since odd the code was contributed from outside of Neo4j then I can see that changing the licence could be seen as rather more problematic.
As an aside, I’d the GPL clause says “you cant add any further restrictions” then does that mean it’s ok to take some GPL code and amend the licence to say “all the above can be ignored”? It’s not a restriction. It’s an anti-restriction. That would be fun
> amend the licence to say “all the above can be ignored”
See, this is the danger in everyone reading those articles about jailbreaking LLMs: they go around applying the same ideas everywhere. It'll only end in tears when you stumble upon a jailbreak for the machine running the simulation of our reality and find you've just switched off gravity. Again.[1]
[1] oops, sorry, none of remember that Friday evening, do you. Look, just forget I said anything, right.
This post has been deleted by its author
So, the upshot is that no matter what any legal text says and how clearly it is written, lawyers can always argue it means the exact opposite. And win.
Cannot say I am surprised, but I am still disgusted.
If some company want to write proprietary code, no one is stopping them. But no, they always have to do this ‘open source’ bait and switch…
> So, the upshot is that no matter what any legal text says and how clearly it is written, lawyers can always argue it means the exact opposite. And win.
Not quite. Almost, but not quite.
You forgot that they'll entirely fail to convert a proprietary licence into an open source licence. Not even a badly-worded "source included" licence.
And they'll wring their hands over that failure as they take the money.
I amended my last tenancy agreement with a clause that says I'm allowed to trash the joint, play music at 130 dB at any time of day or night, remove all the floorboards, and let my dog shit everywhere. I'm having a little trouble getting the deposit back... I may have to take this to an Appeals Court.
licensed with the GNU AGPL.
Can't help thinking entities that want to exploit FOSS are going to be lining up during this administration to neuter (castrate) anything remotely GPL.
I don't imagine these blighters could have any rational grievance with BSD licenses but that wouldn't stop them.
Really smacks of what is yours is mine and what is mine is mine.
I would use the Completely Crap 0 (CC-0) Licence viz "This work is completely crap and comes with zero warranty so feel free to do whatever you wish with it, even make a buck with it, but don't come to me blubbing if it screws up your day/life."
As far as I understand it what Neo4J did is basically the equivalent of me writing a plugin for Excel and then trying to resell Excel with the plugin as a different product. I doubt Micros~1 would allow me to get away with that, and I'm amazed the judge ruled in Neo4J's favour in the first place.
Keep in mind - case happened during covid and all motions were considered without oral arguments. Everything was decided by motion for the most part.
IE. Neo4j supposedly spent $5M+ on lawyers and that was just what they wanted to try recovering (they did not) - real amount is probably much higher.
Look at courtlistener.com - neo4j files huge amounts of motions.
From what I understand, the judge’s clerk acts as a filter, so it is possible the clerk was the cause of this fiasco.
If Neo4j own the copyright to *all* of the software product, they can release it under whatever licence they want. And they can change their mind at any time, though people who received it under previous licence terms still get to use it under the previous licence.
So what appears to be at issue here is the copyright in the actual text of the licence itself? And I'm not sure that a licence / contract is a creative work that gets copyright protection.
The issue appears to be does AGPLv3 prohibit Neo4j from imposing further restrictions?
The lower court ruled AGPLv3 did not and therefore AGPLv3 does not grant others permission to remove further restrictions imposed by Neo4j. That is the decision being appealed,
The reason the judge ruled as they did. Neo4j are the licensor, they own the copyright. AGPLv3 Sections 7 and 10 prohibit a licensee, but not not licensor.
Judges words from https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.118.0.pdf
"Thus, read correctly, Sections 7 and 10 prohibit a licensee from imposing further restrictions, but do not prohibit a licensor from doing so."
In my small brain then, I think the court made the correct ruling. If Neo4j want to add something to a licence that THEY chose to use in the first place then that’s up to them. As I said above, it seems sloppily done (they should have removed the “thou shall not amend this” clause as well to avoid all this confusion).
But to say they are not allowed to do this is nonsense. It’s no different to me writing a “RichNU v 1” licence with the same “thou shall not” clause and then later amending it. Who’s business is it other than mine if I want to do this?
Just because Neo4j took an existing license text and then amended THAT (instead of writing their own) makes no difference - it’s the same principle
If they had written their own licence they can indeed make it say what they want.
But they did not do that.
They used, and stated that they used, the AGPL, which is a work published by the FSF, including the URLs to go to the FSF website for information about said licence. And the AGPL gives its terms of use - only use verbatim copies - right at the start of it.
If you wish to write your own "RichNU v 1" licence then great, go ahead. If you have written it yourself then you can do with it as you wish - your copyright is yours.
But don't expect a free ride if you take somebody else's published work, which itself clearly states the terms under which you may use it - verbatim copies only - and then break those terms.
If you use the accepted way of using the GPLs, you include a proper verbatim copy (name the file whatever you want) and then clearly state, outside of that copy, that you are hereby licensing under the terms of the AGPL plus these modifications: THAT second file is your licence, not the one containing the verbatim copy of the AGPL. And then you get the conflict in the statement of the terms.
> Just because Neo4j took an existing license text and then amended THAT (instead of writing their own) makes no difference - it’s the same principle
No, because they broke the terms under which they are allowed to use the published text they took.
That is stretching things a bit. In a comment in a different thread, I linked to and commented on the text of their license. Right at the top, they state that they are using the AGPL with an additional clause. It wasn't hidden in there.
As for your "verbatim only" point, this seems mistaken and irrelevant. It is irrelevant because that's not at issue anyway. The FSF can sue for that if they like, but they haven't. The issue is whether the clause is applicable to other parts of the license in which it is included, which is not clear because the license they used explicitly states that it does and that it doesn't, so they've stuck themselves in a loop. It wouldn't matter if the FSF had said you could do whatever you wanted with the license; they'd still be in that loop. It is mistaken because the main reason they are in that loop is that they did use it verbatim. They could have fixed the license by modifying or removing a couple sentences, but they didn't, so the license appears in its entirety with no edits. That is, in fact, verbatim in the same way that, if I write an introduction to a book and then include the unedited book, you wouldn't say I had written or edited that book. I agree that they shouldn't have, both for clarity to their users and for not getting themselves into this legal battle, but if you want to make the case based on the terms, they may not support you even if the FSF did choose to sue over it.
If I understand it properly, the AGPL prohibits modification of itself through assertion of copyright ownership, and the AGPL's originator's theory is that they can stop anyone making modifications to the AGPL and therefore everyone else can ignore modifications of it.
Thing is, what counts as a "modification", and at what point has the original been totally expunged? Any license text written after the AGPL could be argued to be a modification of the AGPL, even a very extensive change. But that would be ridiculous as a basis for sustaining some licensee's right to ignore all the modifications (i.e. the whole thing). It would be more reasonable if it were, say, a 1 word change. So, somewhere in the middle is a threshold. The problem is that where that threshold is is unavoidably subjective, which is a terrible mess for people understanding where they are without a Judge telling them.
I don't think courts like such things being "subjective".
> Thus, read correctly, Sections 7 and 10 prohibit a licensee from imposing further restrictions, but do not prohibit a licensor from doing so.
But the text of the AGPL gives the licensee the right to remove restrictive clauses that conflict with rest of the terms of the AGPL - and even gives the URL of where to find an uncorrupted copy, in case you need to verify which bits were added (at least neo4j admitted up front what they had modified).
But, of course, IANAL, let alone a judge, let alone a judge in the US, so...
Thing is, any license written after the AGPL3 could be portrayed as a modification of it, even if 100% of it was changed. It would be absurd if a licensee of software with a totally different license tried to argue "it's extensively modified AGPL3, so therefore I can unwind those mods back to the original AGPL3 text and go by those license conditions and not the ones I signed up to".
At best there's a subjective threshold beyond which a license text definitely is not AGPL3. But, that kind of ambiguity is not popular with courts. Likewise IANAL, nor a Judge, etc too, but it's hard to see the court finding against NEO4J, especially as they were open about it, and especially as they moved away from that modified license anyway, and especially as the FSF (the owners of the text of the AGPL3) haven't made any claim of harm done, nor complained of ownership being trampled on.
> And I'm not sure that a licence / contract is a creative work that gets copyright protection.
Just to start, couple of quotes from Are Contracts Copyrighted? Everything You Need to Know (other sources are available, IANAL etc):
>> there doesn't seem to be any valid reason to exclude contracts and other legal documents from the protection of the copyright law. However, that doesn't imply that all contracts are copyrighted. If your contract is similar to someone else's, with the only difference being specific details like dates and party names, your claim of copyright is likely to be turned down since the contract would not be original enough.
>> A contract drafted from scratch is more likely to get copyright protection than a contract based upon a pre-existing template.
>> Usually, all expressions are automatically covered by copyright protection. Since there is no standard rule as to what can or cannot be considered as an expression, a legal document can easily pass that test to be covered by the copyright law.
In addition, the GPLs are works created for and published by the FSF, along with commentary - which includes FAQs on how to make your own derivatives, such as removing the FSF's preamble, not using the name of the FSF's licence and so on. They even give you a contact if you wish to have an agreement with the FSF to use their preamble!
You're overlooking a key issue - Neo4j added restrictions to the AGPL named license while still retaining the Free Software Foundation's copyright and preamble.
Many people missed this because they saw the FSF AGPL copyright and assumed it was the standard license.
If Neo4j had simply renamed the license to something else (like Neo4j License), removed the FSF copyright, and deleted the preamble, there would have been no issue.
But they did not. They tried to slip one past the community, and only one person stood up to them and called them out.
I think you’re right in that they should have done all the things you say
But the fact that they didn’t doesn’t change the status of the licenced software (at least it doesn’t if one is being pragmatic about it). The software has the same licence regardless of whether they did or didn’t do the things you say
It’s a massive storm in a teacup. When someone spotted what has been done they probably should have just gone back to Neo4j and has a quiet weird and maybe suggest they reword some bits to remove the ambiguity. Instead it has blown up into a ridiculous fight about bugger-all
Exactly that.
The moral of this story is, after reading the various pdfs linked in the other comments here plus /dev/lawyer/ plus misc.:
1. If you get your hands on any software (source code) and you wish to use it / fork it for whatever reason, then, before you commence, check these:
1.a. does the software come with a license? (If not, investigate and see if author has published an umbrella license. If not, ask author/owner about applicable license. goto :start
1.b. Is the license FOSS compliant in its title? (What do they call their license? GPL? MIT? ...what are its consequences for your goals?)
1.c. **Does the license text, as attached, match it's name's canonical publicised version EXACTLY? (Hint: neo4j's does not: there's added blather to their alleged AGPL, which only after C&D was renamed)**
2. If ANY of the above checks raise questions, cause wonderment or otherwise fail to pass the strictest reading, DO NOT PROCEED AND DROP THAT SHITE LIKE ITS A CHERNOBYL CORE.
---
Hence the way I read this whole kerfuffle is: did Neo4j ever publish their stuff under an unadulterated AGPL? AFAICT they did not.
Terribly sorry, but then you (dependent) had only these options:
a. not touching the Neo4j shizzle, ever. A.k.a. "walk away and seek another fork/dream to pursue"
b. before anything else, take Neo4j to court over their use of the AGPL moniker and their shoddy copy-paste-hack of that (copyrighted) license text without changing it's name. If the final decision (after appeal and whatnot) is they must abide by the title rather than the (hacked-together) content and thusly Neo4j is truly subject to canonical AGPL, only then proceed and fork as you did. (Bonus points if you wait until the bastards complied with the decision. Some individuals remain reprehensible, ignoring court orders.)
c. Notify the public about their (perceived or real) misuse/abuse of AGPL (the alleged license name). Blog, toot, tweet, enjoy yourself in indignition, but still DO NOT use/fork their software unless (b) above has been cleared up to your utter satisfaction.
In summary: terrible behaviour by Neo4j, yes, and you my friend, jumped the legal gun. You should never have forked, because you did so starting from a clearly "legal grey zone" as their license text was utterly inconsistent, hence crap, so you either musk your way out on top (let that sink in </puke>) or expect the excrement rain.
My opinion: this changes nothing in how you & me should treat licenses and /or our decision making related to those -- unless you want to reject the above strict protocol for software picking. But that is a wishful thinking vs reality discussion. Out of scope.
(Nothing new really. Heck, there's even software these days to assist the "what license(s) am I subject to if I use this? And can these be mixed / are there any red flags?" due diligence process described.)
The noise and alarm about the wide impact: hogwash. The drama is attention grabbing and hopefully wakes up a bunch, but impact-wise? Nothing to report in the West (E.M.R.)
Lawyers have a "name" out there, but given the often subpar reading ability exhibited by most of us (me included <blush/>), I fear they remain a persistent and necessary evil.
Former neo4j employee here; former in large part because they committed to this foolishness after being told they were wrong by most of the engineering staff, and their own lawyer.
AGPL §7p4 is clear, and written very plainly. I don't know how a judge ever interpreted it any other way; this is very scary for the Free Software community, and I hope the appellate court is sensible on the matter. I further hope that neo4j has to pay Suhy's legal fees, and damages, but that's a pipe dream.
Commons Clause was added because neo4j (actually, just one Product person, who then misinformed the sales people) misunderstood the "use over network" bits. There were users who were _abiding by the AGPL_ and using it according to the license, but neo4j wanted to shake them down for exorbitant license fees. I witnessed these shakedowns and it was some of the most unethical shit I've seen in three decades in this industry.
All of the licensing stuff aside, I'm surprised anyone ever used it past their first data corruption: neo4j made me wish I had the solidity and reliability of MongoDB. :D
Things just got even more interesting. The Free Software Foundation just got involved and filed an amicus brief in the case.
https://storage.courtlistener.com/recap/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee.55.2.pdf
Thanks for the link a very interesting read especially this piece near the very end.
"As explained above, however, the Foundation chose not to take any further action in this matter until now because Neo4j responded to the Foundation’s cease-and-desist letter by eventually removing from its software the infringing files complained about by the FSF and ceasing to offer its software as free software under the AGPL, thus implicitly conceding that the FSF’s position regarding the Commons Clause was correct. "
I am sure that neo4j is already scrambling to come up with alternative reasons why they complied after this amicus brief was filed.
The bigger question is why are they still fighting this knowing the damage it could cause the open source community? Wouldn't it be better if Neo4j admitted they were wrong or at least stop the lawsuit so it does not create the precedent everyone is worried about?
Maybe there is a big payout or something else I am not seeing.
I'm not sure that it's going to cause any damage whatsoever.
At the most severe of readings, the idea is that a copyrighted text that is used as a license has been modified by someone other than the original author of that license text contrary to what the original text says. They have then used that modified version. However, there's a world of difference between a piece of freely distributed, static license text and someone's created software source code.
If it were software source code that had been ripped off, then yes, it's "visit yee all the circles of hell reserved for cheapskate devs" time. But it's not.
The problem for the license is that - as written - it's impossible for anyone else to be inspired by it. Surpression of future ideas is itself something that law will not enforce.
Law won't enforce surpression of ideas in software (at least, not via copyright). If I take a look at the functionality of someone else's program and write a functionally equivalent program from scratch, that is perfectly fine, and it's quite likely that the two sets of source code could be more than vaguely similar. One can be portrayed as a "modification" of the other, even if the modification process were via a black box, but the black box implementation is perfectly OK even if the source code ends up looking very similar. It takes a patent to protect the idea in the software, not copyright.
When it comes to license texts, one could do exactly the same kind of black box analysis, except the "functionality" of the license comes from reading it, and similarity comes from writing a new version in the same language (e.g. English). It is therefore seemingly absurd to claim that the license text is inviable in some way.
"It will create a dangerous legal precedent that could be used to undermine all open-source licenses, allowing licensors to impose unexpected restrictions and fundamentally eroding the trust that makes open source possible."
I'm a bit puzzled by that. A licensor is absolutely free to put any restrictions in a license they like that are compatible with law. That's practically the definition of what a licensor is.
From what I understand, the legal precedent would be that the court would consider the software creator's interpretation of what the open source license terms mean instead of the interpretation of the writer of the open source license.
That is crazy - who could ever trust any open source license if the software creator who adopted it could interpret the meaning differently - even if the writer of open source license clearly explains the reasoning behind each term in the license?
From what I understand, the legal precedent would be that the court would consider the software creator's interpretation of what the open source license terms mean instead of the interpretation of the writer of the open source license.
The interesting thing is that neither the software creator's interpretation nor that of the writer of the license matter. It's the court's interpretation that always matters; the court is the ultimate decider - that's their job!
That is crazy - who could ever trust any open source license if the software creator who adopted it could interpret the meaning differently - even if the writer of open source license clearly explains the reasoning behind each term in the license?
The reasoning may be clearly expressed, but if a term and the associated reasoning is not compatible with law or fundamental rights, then the term is not enforcable.
I personally think that what is being warned about is being undully inflated in importance. There's a world of difference between a work that is an original piece of software source code and a mere license text. The intent of law is partly to promote the exploitation of ideas for the benefit of all. For example, patents provide some protection of ideas (good for the inventor) but limits that protection and encourages licensing (good for everyone else and the consumer; everybody wins, or at least that's the intent).
This makes me think it will be very difficult for the author(s) of a license to claim sole control over any "innovations" that extend or alter that license. In so far as there can be "trade" in licenses (as in, the free flow of ideas to help promote software to exist), having one license text being allowed to surpress other licenses that just happen to be similar is akin to a constraint of trade, a prevention of the flow of ideas. That's pretty much not in line with the general intent of the law.
I very much doubt it will set a precedent that threatens the OSS ecosystem itself. Whatever is decided in this case will be about the license, not about software licensed under it (or any other OSS license).
"From what I understand, the legal precedent would be that the court would consider the software creator's interpretation of what the open source license terms mean instead of the interpretation of the writer of the open source license. That is crazy - who could ever trust any open source license if the software creator who adopted it could interpret the meaning differently - even if the writer of open source license clearly explains the reasoning behind each term in the license?"
The reason it doesn't make sense is that there's a step missing. This is not Neo4J deciding that they want the AGPL to mean something different, so now it does. This is them wanting something different, so they added extra words. The extra words are not at all ambiguous about what they want, but what is less clear is whether they get to add them and whether someone else can remove them. The precedent that is currently applicable says that you can add extra terms when you choose the license to use. Anyone considering doing the same should write their own license, taking whatever pieces they want, but not using the same names. If you do that, you don't end up in this legal morass in the first place, since that has always been legal.
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