The Open Source Initiative Did Not Win Neo4j vs. PureThink(writing.kemitchell.com)
writing.kemitchell.com
The Open Source Initiative Did Not Win Neo4j vs. PureThink
https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThink.html
7 comments
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.
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
[1] https://www.arp242.net/open-source.html
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.
> 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.
>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...
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...
I did read the post. Make your point in a way that's less presumptuous (and less obnoxious)—or, at the very least, coherent.
What does that passage have to do with what I wrote?
What does that passage have to do with what I wrote?
The Commons Clause website agrees with the OSI that any license with the clause is not open source: https://commonsclause.com/
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.
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.
> “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.
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.
Yes they do, just like the OSI is clear on what open source is. But those terms don't explicitly mean that, which is why there is disagreement, especially if the groups supporting them fall into disrepute. I am asking what better name we can find for this, one that is self-evident rather than one that is only made unambiguous by the active work of either OSI or FSF.
No, we really can't, because this is a political issue rather than an issue of logic. The term "freeware" had an unambiguous definition before the FSF came along and decided to co-opt the term for its personal crusade, just like "open source" had an unambiguous definition[1] before the OSI came along to co-opt it in an effort to sell "free software" to businesses. You could adopt a new term tomorrow and people would still come along and try to co-opt it. How do I know? Because when people tried to co-opt Freeware, the term Shareware was adopted, and people came along to try to co-opt that. Likewise, when Freeware was co-opted as "Free Software", the OSI came along to bastardize it and repackage it as "open source" (co-opting and existing term).
You cannot coin your way out of being co-opted by bad actors.
[1] https://www.arp242.net/open-source.html
You cannot coin your way out of being co-opted by bad actors.
[1] https://www.arp242.net/open-source.html
I don't know if naming is a political issue, it is a social one. If I call my software "MIT licensed", there is no ambiguity, and no politics in the meaning (though the act of picking a license can be political I guess).
It is political in the sense that the acceptance of definitions is a matter of politics, not logic. If you call your software "MIT licensed" there can very well be ambiguity by virtue of muddying the situation and getting enough people to agree that your definition is correct such that uninvolved third parties have no idea who is right. This is the present situation with "open source", where the OSI has inserted itself as an arbiter of what is and is not open source, much as the FSF has inserted itself s an arbiter of what is and is not free software. Ultimately, whether you accept their definitions or pre-existing definitions does not boil down to logic, but whose politics you align with, and hence whose definition has greater utility for you such that you want to adopt and propagate it.
Other possibilities: "freedomware" or "software freedom" or "user respecting software".
Actually FOSS (just as OSS) _only_ respects the freedom of the licencee. Any ethical restrictions that are not part of the legal environment (like export control) make open source "unfree" as uncompromised openness is a precondition. IMHO opinion freedom stops there where it restricts the freedom of someone else.
I think FSF is in parts neoliberal and should engage more in an ethical discussion. Just claiming to be free of ideology is ideology itself...
(Edit: made clear that it is not only a FOSS but also OSI "problem")
I think FSF is in parts neoliberal and should engage more in an ethical discussion. Just claiming to be free of ideology is ideology itself...
(Edit: made clear that it is not only a FOSS but also OSI "problem")
Definitely that is the case.
I think this essay probably applies to the FSF's position on the Ethical Source movement even though it wasn't written by them:
https://sfconservancy.org/blog/2022/mar/17/copyleft-ethical-...
I think this essay probably applies to the FSF's position on the Ethical Source movement even though it wasn't written by them:
https://sfconservancy.org/blog/2022/mar/17/copyleft-ethical-...
Oh, I like freedomware. Though it is not immediately obvious what kinds of freedom; I can imagine Commons Clause software being called freedomware as well.
Yes, it turns out to invite confusion when you try defining "freedom" by the circumscription of an accident of Cold War era history and object to other people reading the word as if it were English.
It's very Orwellian sounding.
Stallmanite software
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.
What if I don't particularly care?
Well then just say whatever you want that's not restricted in any way. 'Open source' if you want to. Why did you ask if you don't care?
I don't care what the OSI thinks, I do care what we call it. I asked what we call it.
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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.
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.
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.
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.
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)
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.
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.
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.
I believe that similar reasoning would apply to the AGPL.
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.
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.
All of the high-profile orgs I am aware of who once called their licensing "Apache + Commons Clause" have since changed the names of their licenses to something else.
The argument that "Apache + Commons Clause" is a "combination" is straightforward to counter. The "Commons Clause" is not additive — it fundamentally changes the license, making it more restrictive and taking away potential uses. Consumers could not count on being able to do the things with software under such a license that they would ordinarily expect to be able to do with "Apache" licensed software, which damages the "Apache" brand.
In any case, it's not clear that it's worthwhile to go up against a sympathetic defendant like the ASF and make such an argument for limited benefit.
The argument that "Apache + Commons Clause" is a "combination" is straightforward to counter. The "Commons Clause" is not additive — it fundamentally changes the license, making it more restrictive and taking away potential uses. Consumers could not count on being able to do the things with software under such a license that they would ordinarily expect to be able to do with "Apache" licensed software, which damages the "Apache" brand.
In any case, it's not clear that it's worthwhile to go up against a sympathetic defendant like the ASF and make such an argument for limited benefit.
What did they change the license to? If you have some examples, I would be curious to see how they handled that.
I was under the impression that it was Commons Clause that people started avoiding in favor of other "cloud protection licenses", both to avoid possible confusion and because Commons Clause got visceral reactions from some members of FLOSS community. Unfortunately, other similar licenses are less recognizable. The whole point of generic licenses is that they should be well known, widely used, and the legal departments already know their tradeoffs. If each company writes their own license then this makes it difficult for other companies to use their software, because legal departments need to check every license separately.
Is there a generic license that is the same (in spirit) as Apache + Commons Clause?
I was under the impression that it was Commons Clause that people started avoiding in favor of other "cloud protection licenses", both to avoid possible confusion and because Commons Clause got visceral reactions from some members of FLOSS community. Unfortunately, other similar licenses are less recognizable. The whole point of generic licenses is that they should be well known, widely used, and the legal departments already know their tradeoffs. If each company writes their own license then this makes it difficult for other companies to use their software, because legal departments need to check every license separately.
Is there a generic license that is the same (in spirit) as Apache + Commons Clause?
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.
> (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.
This has been always the point. All GPL licenses have a similar clause.
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.
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.
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.
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.
> 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.
[deleted]
Exactly. You agreed then?
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.
[1] https://en.wikipedia.org/wiki/Comparison_of_free_and_open-so...
[2] https://en.wikipedia.org/wiki/Talk:Comparison_of_free_and_op...