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Court finds calling stuff open source when it's not is false advertising

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Re: Court finds calling stuff open source when it's not is false advertising

#51

Post by kazinator »

busterarm wrote: post #26
warp wrote: post #17

Earlier quoted context omitted.

In practice I don't think it's just OSI which gets to decide this. Debian and Red Hat have their own teams determining whether something is Open Source enough to allow into their distributions, and obviously the Free Software Foundation keeps their own list of licenses which they consider Free Software. If these groups of people disagree on whether a particular license is Free/Open Source software, it's not going to…

They have every right to dictate the meaning of the term. https://en.wikipedia.org/wiki/Open-source_software Read the first section.

They have the right to promote the term, under freedom of speech legislation.

That's about it.

Re: Court finds calling stuff open source when it's not is false advertising

#53

Post by kazinator »

kabdib wrote: post #15
hn_version_0023 wrote: post #10

Earlier quoted context omitted.

That part seemed like their own spin on the decision, to me. I agree with you: they shouldn’t control the term.

I disagree with some of their requirements for open source licenses, and will continue to call the code that I have open sourced over the years as "open source" despite them. Their attempt to occupy the term is a little offensive. Correction: They came up with the name, so it's theirs. I'll leave my public embarrassment here.

The don't own the words "open" or "source code".

They did not come up with the use of the word "open" in regard to computer software or standards. Any native or fluent English speaker could easily do that.

The term "open standard" was used in the 1980's. In the area of Unix, specifically, there existed The Open Group for Unix Systems (later called X/Open Company) and The Open Software Foundation. These two merged in 1996 to form The Open Group.

In the 1980's AT&T and Sun Microsystems collaborated on creating a standard GUI, and called it Open Look.

All these people were corporate cronies trying to create a monopolistic software ecosystem that they control; they used the word "open" insincerely: the obvious ingredient that was lacking was access to source code by anyone who isn't one of the oligarchs.

In that environment it was very easy for any random developer or user to come up with a lament along the lines "these Open This and Open That people have open standards and open systems and even software with the word Open in the name; the only ingredient missing is, oops, the actual open source code".

Re: Court finds calling stuff open source when it's not is false advertising

#54

Post by busterarm »

CogitoCogito wrote: post #50
busterarm wrote: post #48

Earlier quoted context omitted.

Because as far as they know they did. It came up in meetings they had saying "what should we call this?" per your own link! https://en.wikipedia.org/wiki/Multiple_discovery

I'm not really sure what your point is anymore. If you agree that they were not the first ones to use the term, then we are on the same page. If you agree that open source was used as a term before the OSI came along and decided the define the term in a specific way, then we are in agreement.

Not really in the context of software though it wasn't. Save for that one caldera announcement.

General awareness of the term and its meaning starts with the OSI.

Re: Court finds calling stuff open source when it's not is false advertising

#55

Post by josefx »

mintplant wrote: post #36
joshuaissac wrote: post #2

I think the salient point of the article is this: > However, the court held that it was improper for the defendants to remove the Commons Clause, and therefore the defendants’ claims in advertising that its ONgDB software was open source was false advertising. > Even though the AGPL has a clause specifically allowing downstream recipients to remove "further restrictions" like the Commons Clause, the court stopped the…

This is the part of the decision I don't understand. The AGPL seems pretty clear: > 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.

As far as I understand it was never legally AGPL licensed, it was licensed on a custom license that just happened to merge AGPL and commons clause. The commons clause in this case is not an addition to existing AGPL licensed code.

Re: Court finds calling stuff open source when it's not is false advertising

#56

Post by rectang »

nulbyte wrote: post #30

> 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. The court confirmed no such things. The decisions expressed in these two documents regarding the use of "open source" as a description of the produc…

This is the key phrase from the Appeals court decision:

https://storage.courtlistener.com/recap/gov.uscourts.cand.33...

> Defendants' representation that ONgDB is a "free and open source" version of Neo4j® EE was literally false, because Section 7 of the Sweden Software License only permits a downstream license to remove "further restrictions" added by an upstream license to the original work.

It makes sense to me that if the court believes the defendants had no license to use the code at all, then describing it as any "licensed" version would be improper, whether their product was released under a "free and open source" license or even some other kind of license.

I don't fully understand the second part of the sentence about removing the restriction, but I think the court is just explaining why the defendants have no license.

> The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not.

In the Appeals Court decision I didn't see anything affirming that the Plaintiff's license (the text of which is AGPL + Commons Clause) was "open source". EDIT: There's more in the trial court decision.

Re: Court finds calling stuff open source when it's not is false advertising

#57

Post by giantg2 »

Nothing to see here, move along.

The only thing it really addresses about the licensing, is that the license permits downstream users to remove additional terms added by upstream licensees. So original licensing of the licensor (adding the Commons Clause) is not allowed to be removed by a licensee as it doesn't fit the definition of an additional term.

Re: Court finds calling stuff open source when it's not is false advertising

#58

Post by pie_flavor »

valdiorn wrote: post #49

A bunch of people here are conflating the concepts of "free software" and "open source". these are not the same. "Free" (as in speech, or beer) software is governed by the license it is published under. Open source simply refers to the fact that the source code is publicly available. Open source is a prerequisite for truly free (as in speech) software, but the opposite is not.

The court decision directly declares this false. The fact that AGPL+Commons makes code source-available (the source code is publicly available) but not open-source (https://opensource.org/osd) is the false advertising claim in question. If you were to design a source-available nonfree product, and call it 'open source', this court would find you guilty of false advertising. Not that this should come as a surprise, as the OSI definition has every right to be authoritative, given that the people who started the OSI literally invented the term.

Re: Court finds calling stuff open source when it's not is false advertising

#59

Post by pie_flavor »

glind72 wrote: post #4

This is really interesting. Specifically this quote "it’s false advertising to claim that software is “open source” when it’s not licensed under an open source license". Also, is opensource.org and the OSI the only organization that can define it and if so should they be? To me this is more about false advertising and changing a license. Another reason to look at a tool like debricked for license management.

The OSI founders are (some of) the inventors of the term Open Source. It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy. Or, for that matter, the Free Software Foundation that they're wrong about what constitutes Free Software.

Re: Court finds calling stuff open source when it's not is false advertising

#60

Post by senkora »

valdiorn wrote: post #49

A bunch of people here are conflating the concepts of "free software" and "open source". these are not the same. "Free" (as in speech, or beer) software is governed by the license it is published under. Open source simply refers to the fact that the source code is publicly available. Open source is a prerequisite for truly free (as in speech) software, but the opposite is not.

freeware != free software ~= open source != source available
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