OSI: Court affirms it's false advertising to claim software is Open Source when...
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OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
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. Had the defendants’ desire to license its software as AGPLv3-only been permissible, its claims of “100% open source” wouldn’t have been false and there would have been no false advertising. But adding the non-free Commons Clause created a different license such that the software could not be characterized as “open source” and doing so in these circumstances was unlawful false advertising.
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OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 17:01 UTC (Thu) by nye (guest, #51576) [Link]
> There's another interesting aspect to this case. 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. We'll cover that in our next post.
Looking forward to that one.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 17:18 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]
There's a huge problem with that clause of the AGPL: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.
Suppose someone who is sloppy about licenses takes an AGPL work, combines it with some non-free but legal to distribute software, and includes the AGPL plus the notice giving the license terms for the non-free software. Can a downstream recipient then "remove that term"? Licenses don't have that kind of power.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 19:22 UTC (Thu) by NYKevin (subscriber, #129325) [Link]
> You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.
So whoever actually created the upstream AGPL software can sue the distributor for an AGPL violation, but the ultimate recipient is just out of luck.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 19:52 UTC (Thu) by zwol (guest, #126152) [Link]
That is: supposing Alice writes some software (all by herself, so she's the only copyright holder) and distributes it under AGPL. Bob makes no changes to the actual code but slaps a clickwrap no-reverse-engineering license on it and distributes it that way. Carol, who receives the software from Bob, can discard the clickwrap and distribute Alice's code under AGPL as-if she had received it directly from Alice. Carol doesn't have to obey Bob's terms while waiting for the Alice v. Bob lawsuit to resolve.
The scenario in the lawsuit is different: the original authors of the software added terms to AGPL _themselves_. I'm guessing the court saw this as the creation of a new "AGPL with extra restrictions" license, and read "You may remove" to apply only to terms added _on top of that_ by third parties.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 18, 2022 0:27 UTC (Fri) by rgmoore (✭ supporter ✭, #75) [Link]
I'm guessing the court saw this as the creation of a new "AGPL with extra restrictions" license, and read "You may remove" to apply only to terms added _on top of that_ by third parties.
IAANAL, but that's the way I read this case as well. The original author can release the software under any license they choose. If they write their license by adding extra terms to an existing license, further distributors aren't free to remove those terms, even if the license it was based on says something about removing additional terms.
In practical terms, I think this was a bad way to write the license. They thought they were saving time by taking an existing license and modifying it, but instead they wound up wasting time with a lawsuit. If they had paid their lawyers to do a good job of writing a license that said exactly what they wanted, it would have cost a bit more up front but would have saved a lot of trouble in the long run.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 20:17 UTC (Thu) by bjartur (guest, #67801) [Link]
So, according to the trial court, the Neo4j Sweden Software License is an open source license. The November 2018 release is the first closed source release, according to the court. Of course, the court is wrong, IMO.
In May 2018, Plaintiffs released Neo4j EE version 3.4, which they continued to offer under an open source license; however, they replaced the AGPL with a stricter license, which included the terms from the AGPLv3 and additional restrictions provided by the Commons Clause (“Neo4j Sweden Software License”).&emdash;the trial court
Also, the court found the false advertising to be material because the word free in free and open source drop in replacement implied that the free version was cheaper than the unfree version. It did not mention if software freedom was material, because the alleged price difference (alleged by whom?) was sufficiently material.
It is undisputed that Defendants made the statements at issue to convince customers to adopt ONgDB over Neo4j EE. Because Defendants misrepresented ONgDB as a free version of Neo4j EE licensed under the APGL, there is no doubt that this price differential (free versus paid) was likely to influence customers purchasing decisions. See Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1106–1107 (9th Cir. 2013), as amended on denial of reh’g and reh’g en banc (July 8, 2013) (recognizing under the UCL that price is material to purchasing decisions). Thus, the Court finds that Defendants’ statements suggesting that customers could obtain a “free and open source drop in replacement” for Neo4j EE were material.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 20:34 UTC (Thu) by juliank (subscriber, #45896) [Link]
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 22:17 UTC (Thu) by pavon (subscriber, #142617) [Link]
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 22:37 UTC (Thu) by KJ7RRV (subscriber, #153595) [Link]
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 23:17 UTC (Thu) by bjartur (guest, #67801) [Link]
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 17, 2022 23:53 UTC (Thu) by KJ7RRV (subscriber, #153595) [Link]
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 18, 2022 9:22 UTC (Fri) by fredrik (subscriber, #232) [Link]
My conclusion is that it would be wise of a company that intends to charge a price when distributing free software to avoid the ambiguity by explicitly stating their intended meaning of the word free. Not only in the license but also in their marketing material.
But IANAL. It would be interesting to get a professional opinion on this matter, in the light of this ruling.
OSI: Court affirms it's false advertising to claim software is Open Source when it’s not
Posted Mar 18, 2022 10:01 UTC (Fri) by jd (subscriber, #26381) [Link]
The court was also of the opinion that the software's source wasn't open and whether that impacted how they tried to construe what the "free" could have meant is less obvious. They don't seem to have consciously looked at it that way, but that doesn't mean it didn't create some level of bias.
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