Court finds calling stuff open source when it's not is false advertising • Hacker News Board

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

#71

Post by pie_flavor » Thu, Mar 17, 2022, 5:21 PM UTC

CogitoCogito wrote: post #29

busterarm wrote: post #19

Earlier quoted context omitted.

They occupy the term because they literally coined it, if you know your history.[1] OS came to us from the OSD, written by the OSI and after hot debate in the early days of what should and shouldn't be Free Software. It was specifically a reaction to the FSF and a rejection of that group's activism, which didn't fit what they were trying to do. [1]: https://en.wikipedia.org/wiki/Open-source_software (specifically the…

They didn’t coin the term: https://lunduke.substack.com/p/who-really-coined-the-term-op...

When I see a bunch of disconnected posts, and not a percentage or some kind of number, I automatically assume those are all the examples the author could find. If you trawled through the entirety of usenet you could probably also find someone who capitalized the word Windows before Microsoft ever got hold of it. I disagree with Richard Stallman and the FSF about a lot of things, but I would never oppose their right to declare what is and isn't 'free software' (within the hacker community, anyway), regardless of how many people put the word 'free' before the word 'software' before he started talking about it.

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

#72

Post by joshuaissac » Thu, Mar 17, 2022, 5:21 PM UTC

pie_flavor wrote: post #68

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'…

> that clause actually says upstream licensee

The AGPL does not use that wording, but the court chose to interpret it that way because the alternative interpretation that a licence could restrict how the original licensor can convey their work was deemed to incompatible with the principles of contract and copyright law.

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

#73

Post by Dylan16807 » Thu, Mar 17, 2022, 5:21 PM UTC

mkr-hn wrote: post #34

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.

Think of this in terms of a brand defending their trademark to avoid losing it through dilution. It's Open Source, a term they created, not a generic concept "open source." I don't like them owning a term that feels like it should be generic and communally defined, but it's not, and they do.

Do they even claim to own the term?

They are the Open Source Initiative, stewards of the Open Source Definition.

The closest I see is a rule then when you're using the OSI trademark or logo you need to follow their definition of "Open Source".

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

#74

Post by teilo » Thu, Mar 17, 2022, 5:21 PM UTC

pie_flavor wrote: post #58

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,…

No, that's not what the decision says. OSI is guilty of making claims that the court did not make, and they are adding needless confusion to the legal definitions of the terms "Open Source" and "Free". No court has ever ruled on a definitive meaning of "open source" that matches OSI's definition of the term.

OSI is claiming that the term "open source" is what is false advertising. But both the trial and appellate courts are specifically calling out the phrase "open source and free" as false advertising. Neo4j EE and ONgDB may be "open source," but they are definitely not "free."

If the defendants had only claimed that ONgDB was "open source" they might not have had any issues. But because they removed the Commons Clause and also declared it "free," they are in violation of the original license of Neo4J EE, a license which is still in force, and a license which is not "free."

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

#75

Post by Dylan16807 » Thu, Mar 17, 2022, 5:23 PM UTC

giantg2 wrote: post #70

Dylan16807 wrote: post #64

Earlier quoted context omitted.

Copyright is automatic.

True, I mean if you dedicate it or decide not to defend it.

It's really splitting hairs to say that dedicating it isn't a license. Especially because you need a fallback license in many countries.

Deciding not to defend it means it's still copyright infringement to use the unlicensed code, and they could change their mind at any time.

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

#76

Post by pie_flavor » Thu, Mar 17, 2022, 5:24 PM UTC

devmunchies wrote: post #11

so now open source is the licensing on not whether the source code is freely visible? "this unlicensed project is closed source, source code is free to browse >here<"

Yes, this is what it has basically always meant to basically everyone who uses it. https://opensource.org/osd

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

#77

Post by hn_version_0023 » Thu, Mar 17, 2022, 5:24 PM UTC

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.

Hard disagreement from me. The courts get to decide, not some random organization that clearly has an interest in promoting themselves.

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

#78

Post by rectang » Thu, Mar 17, 2022, 5:25 PM UTC

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.

> Open source simply refers to the fact that the source code is publicly available.

That's "source available". "Open Source" is widely understood to mean a bunch more, captured in the "Open Source Definition": https://opensource.org/osd

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

#79

Post by hn_version_0023 » Thu, Mar 17, 2022, 5:30 PM UTC

kazinator wrote: post #53

kabdib wrote: post #15

Earlier quoted context omitted.

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…

This is a fun little bit of history! As an aside, I was once employed as a systems administrator in the “Open Systems” group at my employer, in roughly 1999. In reality, I worked exclusively on SunOS/Solaris.

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

#80

Post by teilo » Thu, Mar 17, 2022, 5:30 PM UTC

rectang wrote: post #78

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.

> Open source simply refers to the fact that the source code is publicly available. That's "source available". "Open Source" is widely understood to mean a bunch more, captured in the "Open Source Definition": https://opensource.org/osd

No court has as yet ruled that the OSI definition of "open source" is the legal definition of the term. The ruling here does not either. If it had limited its ruling to the term "open source," then this would indeed begin to codify what "open source" means from a legal standpoint.

However, the courts ruled upon the composite term "open source and free". Under the OSI definition, open source implies free. But no court has yet so ruled.