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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

#61

Post by teilo »

phendrenad2 wrote: post #7

IANAL, but it seems to me that the court has only decided that if you fork software, and break it's license by removing clauses that aren't permitted to be removed (think removing one of the 3 clauses in a 3-clause BSD license), then you're distributing the software under a license that is a lie, and thus invalid, and thus not "open-source". Could this be used as precedent if you release software and claim that it's…

Yes, this is what I think is going on here. It's a bit more complicated though.

In the case of AGPL, you have an original open source release A that is forked to create B, and restrictions are added to the license of B. The original license of A permits those restrictions to be removed by someone who forks B into C. C is under no obligation to abide by those additional restrictions added by B.

But for that rule to apply in this case, the original code must have been licensed without such restrictions. If the original code, as in the case of Neo4j EE, was licensed under AGPL+Commons Clause, then that combination IS the original license. Downstream forks cannot remove that Commons Clause restriction and claim that the fork is "Free," because the original license is still in force, restrictions and all.

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

#62

Post by fluidcruft »

joebob42 wrote: post #5

I don't like that OSI seems to somehow come away with this (at least as framed here) with control of the term. I agree just calling whatever nonsense open-source is problematic, but I don't agree it has to be one of their licenses to be open source at all .

I recently started listening to an InfoSec podcast and there's an interesting conflict of terms going on in terms of journalist/hacker/analyst/researcher use of the term "open source". It seems like "Open Source" can be an answer to the question "What's your source on that information?" And "open source" means it's freely available public information vs say a private interview or information acquired with a warrant or wiretap or freedom of information request. Based on that use case and how careful journalists need to be about sources, I suspect journalists etc were using the term first. And I suspect Perens encountered it in that domain first and applied it to software. But I honestly have no idea.

Open Source is a pretty dumb term. Free Software is also a dumb term for other reasons. It's a pity.

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

#63

Post by joshuaissac »

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.

The longer order with the facts[1] has more details about this point than the shorter decision.[2] They explain their rationale on pages 24-25.

It seems that this question was already decided by the court in an earlier case, Neo4j, Inc. v. Graph Found., Inc 2020.[3] They decided that only restrictions added by downstream licensees could be removed in this way. The original licensor can impose additional restrictions, and those cannot be removed, because it would be "contrary to the principles of contract and copyright law" to allow such a thing.

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

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

3. https://casetext.com/case/ne04j-inc-v-graph-found-inc/

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

#65

Post by [deleted] »

busterarm wrote: post #13
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.

They determined the guidelines of what constitutes being Open Source. Absolutely they should control the term. Just look at all of the companies out there with "source-available" licenses masquerading as Open Source. Neo4j themselves here uses "Open Source" in all of their marketing materials and should be just as guilty as this fork of false advertising.

[deleted]

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

#66

Post by Dylan16807 »

pie_flavor wrote: post #59
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.

> It'd be like telling Ken Thompson he's wrong about what constitutes Unix Philosophy.

If his definition has shifted, it might be entirely correct to say he's wrong.

You can also accept his general definition but validly disagree with how exactly to apply it.

Inventing a term gives you a lot of authority but not total control over what it means.

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

#67

Post by jcranmer »

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…

Yeah, that entire paragraph is complete and total bunk. If you go the trial court's opinion regarding the "free and open source" bit:

> The parties agree that the truth or falsity of Defendants’ statements hinge on “the interpretation of Section 7 [of the Neo4j Sweden Software License], and GFI’s right to remove the Commons Clause from the Neo4j Sweden Software License.”

The court isn't deciding if ONgDB is "free and open source" according to a lay definition of the term, it's deciding if ONgDB has the right to license it in that matter, since that's what the parties are asking it to decide. In other words, if the statement is "ONgDB is a free and open source version of Neo4j", the operative words being challenged aren't so much "free and open source" as they are "version" (or more specifically, the implicit "validly licensed" phrase).

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

#68

Post by pie_flavor »

This article doesn't really explain what happened, and the details it does give contradict each other. Here it is as I understand it:

- the plaintiff's software was under the AGPL+Commons, which makes it non-open-source

- the defendants copied the software, re-releasing it under bare AGPL, under the clause that says you can remove upstream restrictions

- that clause is actually about licensees, and the plaintiff isn't a licensee, they're a copyright holder. So the defendants had no right to remove it and their version can only be, and therefore is, subject to the Commons Clause too

- their declaration of being open source would have been valid if they had the right to license the work as they did, but they didn't, so it's not open-source

I assume that the plaintiff couldn't figure out a way to make a copyright license violation accusation stick, so they went after them for false advertising instead, and the judge judged it with the intensity of a copyright license violation because he knew the score too. This seems like a bizarre train for the OSI to leap on because it doesn't further anything about open-source and only furthers the interests of people who aren't.

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

#69

Post by chrisseaton »

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 every right to dictate the meaning of the term.

I mean this is just factually not true. They have no such right. They tried to trademark it, but failed because it's just a generic term.

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