False Advertising To Call Software Open Source When It's Not, Says Court

An anonymous reader quotes a report from The Register: Last year, the Graph Foundation had to rethink how it develops and distributes its Open Native Graph Database (ONgDB) after it settled a trademark and copyright claim by database biz Neo4j. The Graph Foundation agreed [PDF] it would no longer claim specific versions of ONgDB, its Neo4j Enterprise Edition fork, are a "100 percent free and open source version" of Neo4J EE. And last month, two other companies challenged by Neo4j -- PureThink and iGov -- were also required by a court ruling to make similar concessions.

ONgDB is forked from Neo4j EE, which in May 2018 dropped the GNU Affero General Public License (AGPL) and adopted a new license that incorporates the AGPLv3 alongside additional limitations spelled out in the Commons Clause license. This new Neo4j EE license forbade non-paying users of the software from reselling the code or offering some support services, and thus is not open source as defined by the Open Source Initiative. The Graph Foundation, PureThink, and iGov offered ONgDB as a "free and open source" version of Neo4j in the hope of winning customers who preferred an open-source license. That made it more challenging for Neo4j to compete.

So in 2018 and 2019 Neo4j and its Swedish subsidiary pursued legal claims against the respective firms and their principals for trademark and copyright infringement, among other things. The Graph Foundation settled [PDF] in February 2021 as the company explained in a blog post. The organization discontinued support for ONgDB versions 3.4, 3.5 and 3.6. And it released ONgDB 1.0 in their place as a fork of AGPLv3 licensed Neo4j EE version 3.4.0.rc02. Last May, the judge hearing the claims against PureThink, and iGov granted Neo4j's motion for partial summary judgment [PDF] and forbade the defendants from infringing on the company's Neo4j trademark and from advertising ONgDB "as a free and open source drop-in replacement of Neo4j Enterprise Edition" The defendants appealed, and in February the US Court of Appeals for the Ninth Circuit affirmed a lower court decision that the company's "statements regarding ONgDB as 'free and open source' versions of Neo4j EE are false." "Stop saying Open Source when it's not," said the Open Source Initiative in a blog post. "The US Court of Appeals for the Ninth Circuit recently affirmed a lower court decision concluding what we've always known: that it's false advertising to claim that software is 'open source' when it's not licensed under an open source license."

The important bit.

[Gravis Zero]

"This is interesting because the court enforced the 'Open Source' term even though it is not registered with USPTO as a trademark (we had no lawyers who would help us, or money, back then). This [judgement] recognizes [Open Source] as a technical claim which can be fraudulent when misused."

Re:

[drinkypoo]

Except that's a lie [slashdot.org].

They didn't invent the phrase Open Source, but claim they did.

They tried to make it look like they had Trademarked the phrase Open Source in their logo, and actually later moved the trademark symbol outside their logo after they were chastised for it repeatedly.

Now they want us to believe that a case is about something it is not about.

The OSI's continual lies undermine any good they might be trying to do, and indeed, the very idea that they are trying to do good.

It's on page 25 of the court order

[raymorris]

I get it you hate OSI for whatever reason. That's fine. The case isn't about whether or not you hate OSI. That isn't relevant.

Page 25 of the order, the court rules that it's false advertising to call it "free an open source" when it's not. Quoting the order:
---
Court finds that Plaintiffs have established that Defendantsâ(TM) statements regarding ONgDB as âoefree and open sourceâ versions of Neo4j EE are false.
--

You seem to be confusing "do I hate OSI?" with "did this court make a ruling abo

Re:

[drinkypoo]

I get it you hate OSI for whatever reason.

I hate lies. They lie a lot, and when they're not lying, they're deliberately misleading.

Page 25 of the order, the court rules that it's false advertising to call it "free an open source" when it's not. Quoting the order:

sigh

Court finds that Plaintiffs have established that DefendantsÃ(TM) statements regarding ONgDB as Ãoefree and open sourceà versions of Neo4j EE are false.

Holy fucking shit, learn to English dude. That doesn't say what you just said it said.

Re:

[drinkypoo]

Except when you are the one making them. Obviously. Then lies are just fine and dandy.

Run along, coward. I've got my citations and I'm not afraid to use them. You may post your challenges under your account name. I'll face my accuser, thanks.

Re:

[raynet]

I see no citations on this post, perhaps they are on-existent?

Re:

[Aighearach]

I hate lies. They lie a lot, and when they're not lying, they're deliberately misleading.

You're a whiny child using literal ad-hominem; you're opposed to their argument because of who they are.

learn to English dude. That doesn't say what you just said it said

I doubt you have reading comprehension in any language at all.

Now get confused about the difference between ad-hominem and pejorative, and spew. (again) I'm waiting.

Re:

[Baconsmoke]

What does your personal crusade against OSI have to do with this court case? You're letting your personal dislike of the org confuse you with what is an important case here. Don't let your personal filters about things prohibit you from seeing important changes in the way courts view these kinds of issues.

for fucks sake

[Osgeld]

please if your a software developer use fuckin words ONgDBSNeo4JEEGNUAfroAGPLv3

If I read it corectly

[Registered Coward v2]

The settlement said they could use code released under GNU Affero General Public License (AGPL) but not any with the new license. They also can't use the Neo4J name since it is trademarked. It seems the issue was they used the code released under a new license, claimed it was open source and got smacked down as a result when the court said, no the new license clauses are valid. That makes sense, as do the trademark restrictions. What am I missing?

Re:

[i.r.id10t]

No where near anything like a lawyer and I've not read the AGPLv3 but wouldn't redistributing with more license conditions effectively revoke their own license to the original software they started the fork from? Seems to me there is a possibility of copyright infringement as well.

Re:

[angel'o'sphere]

A license is a kind of contract.

And contracts can not be/are not under copyright.

Otherwise random parties could not engage into the same contracts.

Perhaps read the copyright law. It is rather short. And it explains explicitly what "works" are/can be copyrighted.

Re:

[account_deleted]

Comment removed based on user account deletion

Re:

[sjames]

If it already belongs to you, you don't need a license.

Not so fast...

[SQL Error]

This article says that OSI's claims about the ruling are misleading at best. [kemitchell.com]

The court didn’t legally decide anything about the meaning of “open source”. It didn’t define any new terms of art legal-system-wide. It didn’t even make precedent. The first page of its decision says “NOT FOR PUBLICATION” at the top and “This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3” at the bottom.

Re:

[drinkypoo]

Thanks for linking that article, which shows that the OSI is up to its usual bullshit tricks of trying to embiggen itself at the expense of the truth.

Open Source does not and never has meant anything other than being able to get the sources, it has nothing to do with what you're legally allowed to do with them. I and others were using it in that sense before the liars at the OSI claim to have invented it, there are numerous citations available to prove it, and that lack of distinction is in fact the entire

Re:

[angel'o'sphere]

I and others were using it in that sense before the liars at the OSI claim to have invented it, /me raises hand
I'm one of those others. We used the term at least from 1989 on in my university. I was unix admin and installed hundreds of "open source packages" on our Sun and Ultrix clusters.

Re:

[LoneTech]

"Open Source does not and never has meant anything other than being able to get the sources" - bullshit. Open Source has a very clear definition as a term, laid down in the Open Source Definition, in turn based on the Debian Free Software Guidelines, in turn based on the Free Software Foundation's Free Software. You can argue the term lacks legal protection, but stop spreading lies about what it means.