Court rules unopened ‘open source’ code is false advertising

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Last year, the Graph Foundation had to rethink how it develops and distributes its Open Native Graph Database (ONgDB) after settling a trademark and copyright claim by biz database Neo4j.

The Graph Foundation Agreed [PDF] it would no longer claim that specific versions of ONgDB, its Neo4j Enterprise Edition fork, are a “100% 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 order to make similar concessions.

ONgDB is derived from Neo4j EE, which in May 2018 dropped the GNU Affero General Public License (AGPL) and adopted a new license that incorporates AGPLv3 along with additional limitations set forth in the Commons Clause License. This new Neo4j EE license prohibited non-paying users of the software from reselling the code or offering certain support services, and is therefore not open source within the meaning of the Open Source Initiative.

The Graph Foundation, PureThink, and iGov offered ONgDB as a “free and open source” version of Neo4j in hopes of winning over customers who preferred an open source license. This made the competition harder for Neo4j.

So, in 2018 and 2019, Neo4j and its Swedish subsidiary filed lawsuits against the respective companies and their executives for trademark and copyright infringement, among other things.

The Graph Foundation colonized [PDF] in February 2021, as the company explained in a blog post. The organization has 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 Neo4j EE version 3.4.0.rc02 under AGPLv3 license.

Last May, the judge who heard the claims against PureThink and iGov granted Neo4j’s motion to partial summary judgment [PDF] and barred defendants from infringing on the company’s Neo4j trademark and advertising ONgDB “as a free, open-source replacement for Neo4j Enterprise Edition…”

The defendants appealed, and in February the United States Court of Appeals for the Ninth Circuit upheld a lower court ruling that “the company’s statements regarding ONgDB as ‘free and open source’ versions source” from Neo4j EE are wrong”.

On Thursday, the Open Source Initiative, which oversees the open-source definition and OSD-based licensing, celebrated the appeals court ruling.

“Stop saying Open Source when it’s not,” the organization said in a blog post. “The United States Court of Appeals for the Ninth Circuit recently upheld a lower court ruling finding what we have always known: that it is false advertising to claim that software is “open source “while it is not under an open source license.”

In an email to The registerBruce Perens, creator of the Open Source Definition and open source pioneer, observed: “It’s interesting because the court applied the term ‘Open Source’ even though it is not registered with the ‘USPTO as a trademark (we didn’t have lawyers to help us, or money, back then). This recognizes it as a technical claim that can be fraudulent when misused.”

Perens added that it is not surprising that the court refused to delete the terms of the Commons clause from copyright holder Neo4j.

“Even though the AGPL has some verbiage that allows such removal, licensing isn’t all-powerful,” he said. “They’re only really good at enforcing that a party is a copyright infringer if they don’t follow the terms. And the copyright owner themselves can’t be an infringer of a work he owns, but only that of others.” ®

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