OSI published a blog saying "Stop saying Open Source when it's not". The U.S. Court of Appeals for the Ninth Circuit recently affirmed a lower court decision, concluding that if a company claims its software is "open source" but isn't licensed under an open source license, it's false advertising .
The incident was caused by the open source high-performance NoSQL graph database Neo4j and its Swedish subsidiary suing the Graph Foundation, PureThink and iGov and their principals in 2018 and 2019 for trademark and copyright infringement .
Neo4j provides free and open source community edition (under GPLv3 agreement ) and paid enterprise edition Neo4j EE. And Neo4j EE abandoned the original AGPL agreement when it released version 3.4 in May 2018 and changed to a more strict AGPLv3 + Commons Clause dual license ; this new license terms prohibit non-paying users of the software from reselling code or providing some support Serve. In November of the same year, Philip Rathle, vice president of Neo4j products, announced that starting from Neo4j version 3.5, the enterprise version will only be available under a commercial license, and the source code will no longer be available on GitHub.
Against this backdrop, the three parties sued offered a product called Open Native Graph Database (ONgDB) - a fork from Neo4j EE; and began distributing its version under an AGPLv3-only license, promoting ONgDB as a "Free and Open Source", "100% Free and Open" and "100% Open Source", compete with Neo4j in the market.
Following the court's decision , the Graph Foundation said it would no longer claim that the specific version of ONgDB, its Neo4j EE fork, was the "100% free and open source version" of Neo4J EE. Last February, the group announced it was discontinuing support for ONgDB versions 3.4, 3.5, and 3.6; and released ONgDB 1.0 as a fork of the AGPLv3-licensed Neo4j EE 3.4.0.rc02 version to replace them.
In response, PureThink and iGov were also ordered to make similar concessions by court rulings. In May of last year, the court ruled at first instance in the claims against PureThink and iGov , barring the defendants from infringing Neo4j's trademarks, while also barring the defendants from promoting ONgDB as a free and open source alternative to Neo4j EE... After the defendants appealed, The U.S. Court of Appeals for the Ninth Circuit confirmed the lower court's ruling in February that the company "wrong to state that ONgDB is a 'free and open source' version of Neo4j EE".
The court found that the defendant's removal of the Commons Clause was inappropriate, and therefore the defendant's advertising claim that its ONgDB software was open source was false advertising.
For a false advertising claim, there must be a false statement in the commercial advertisement, and the statement must be substantially deceptive. The trial court held that the description of software under the Commons Clause as "free and open source" was false and the deception was substantial. "Since the defendants misrepresented ONgDB as a free version of Neo4j EE licensed under APGLv3, there is no doubt that this price difference (free vs. paid) may have influenced customers' purchasing decisions. Therefore, the court held that the defendants implied that customers could The claim to get a 'free and open source alternative' to Neo4j EE is substantial."
OSI says:
The court has only confirmed what we already knew - "open source" is a technical term for software that has been licensed under a specific type of license, and whether the license is an OSI-approved license is a crucial factor in user adoption of the software. If the defendant wishes to license its software to which only AGPLv3 is permitted, then its claim of "100% open source" would not be false and there would be no false advertising. But joining the non-free Commons Clause creates a different license that prevents the software from being characterized as "open source", in which case doing so would be illegal false advertising.
Also, there is an interesting point about this case. That is, although the AGPL has a clause that specifically allows downstream recipients to remove "further restrictions," such as the Commons clause; courts have prevented defendants from doing so.
In response to the court's decision, Bruce Perens, one of the founders of the open source movement , noted in an email to The Register : "It's interesting because the court enforced the term 'open source' even though it was not trademarked in the U.S. patent. registered as a trademark (we had no lawyers and no money at the time). But it was an admission that it was a technical claim that could be considered fraudulent when abused."
He added that it is not surprising that the court would not allow the removal of the Commons clause. "Although the AGPL has some wording that allows for this kind of removal, licenses are not a panacea. They really only apply to enforcement, and if a party doesn't abide by the terms, they're a copyright infringer. And the copyright holder itself can't be their own The infringer of the works of others can only be the infringers of the works of others."