Microsoft To Ban Commercial Open Source from App Store

by Denver Gingerich and Bradley M. Kuhn on July 7, 2022

Microsoft Will Even Prohibit Charitable FOSS Fundraising Through the “Microsoft Store”

A few weeks ago, Microsoft quietly updated its Microsoft [app] Store Policies, adding new policies (which go into effect next week), that include this text:

all pricing … must … [n]ot attempt to profit from open-source or other software that is otherwise generally available for free [meaning, in price, not freedom].

Yesterday, a number of Microsoft Store users discovered this and started asking questions. Quickly, those of us (including our own organization) that provide Free and Open Source Software (FOSS) via the Microsoft Store started asking our own questions too. While Microsoft has acknowledged the ensuing community outrage, they have not clarified their policy. In the meantime, this clause reverses long-standing app store policies, and is already disrupting commerce on their platform (with its tight countdown clock to implementation). In particular, Microsoft now forbids FOSS redistributors from charging any money for nearly all FOSS (i.e., “profit”). Since all (legitimate) FOSS is already available (at least in source code form) somewhere “for free” (as in “free beer”), this term (when enacted) will apply to all FOSS.

For decades, Microsoft spent great effort to scare the commercial software sector with stories of how FOSS (and Linux in particular) were not commercially viable products. Microsoft even once claimed that anyone who developed FOSS under copyleft was against the American Way. Today, there are many developers who make their living creating,supporting, and redistributing FOSS, which they fund (in part) by charging for FOSS on app stores. We in the FOSS community have long disagreed with Microsoft: we have touted that FOSS provides true neutrality regarding commercial and non-commercial activity — both are permitted equally. In short, our community proved Microsoft wrong with regard to the commercial viability and sustainability of FOSS.

Sadly, these days, companies like Microsoft have set up these app stores as gatekeepers of the software industry. The primary way that commercial software distributors reach their customers (or non-profit software distributors reach their donors) is via app stores. Microsoft has closed its iron grasp on the distribution chain of software (again) — to squeeze FOSS from the marketplace. If successful, even app store users will come to believe that the only legitimate FOSS is non-commercial FOSS.

This is first and foremost an affront to all efforts to make a living writing open source software. This is not a merely hypothetical consideration. Already many developers support their FOSS development (legitimately so, at least under the FOSS licenses themselves) through app store deployments that Microsoft recently forbid in their Store. The well-known Krita painting software and the video editing software ShotCut are both sold on Microsoft's app store (and will both soon be in violation of Microsoft's terms). Indeed, our own Inkscape project has unilaterally chosen to only request, rather than require, donations from Microsoft Store users, but this new term forces that decision upon Inkscape permanently. These represent just a few examples of developers and/or redistributors left out in the cold under Microsoft's new terms.

Microsoft counter-argues that this is about curating content for customers and/or limiting FOSS selling to the (mythical) “One True Developer”. But, even a redrafted policy (that Giorgio Sardo (General Manager of Apps at Microsoft) hinted at publicly early today) will mandate only toxic business models for FOSS (such as demo-ware, less-featureful versions available as FOSS, while the full-featured proprietary version is available for a charge). Any truly FOSS system is always “generally available for free” — since the developers do the work in public, and encourage others to remix and rebuild the software into binaries for all sorts of platforms. These are essential rights and freedoms that FOSS licenses give users and businesspeople alike. FOSS was designed specifically to allow both the original developers and downstream redistributors to profit fairly from the act of convenient redistribution (such as on app stores). No company that supports FOSS and its commercial methodologies would propose to curtail these rights and freedoms. So we're left quite suspect of Microsoft's constant claims that they've changed their tune about FOSS. They still oppose it; they've just gotten more crafty about the methods of doing so.

Selling open source software has been a cornerstone of open source's sustainability since its inception. Precisely because you can sell it, open source projects like Linux (which Microsoft claims to love) have been estimated to be worth billions of dollars. Microsoft apparently does not want any FOSS developers to be able to write open source in a sustainable way.

Finally, this is a known pattern of Microsoft's behavior. Rolling out unreasonable and unconscionable policies — only to “magnanimously” retract them weeks or months later — is a strategy that they've used before. Indeed, Microsoft employed this exact tactic when originally creating their app store (then marked under the predecessor brand name, “Windows Marketplace”). Initially, Microsoft banned all copyleft licenses from its app store, and when the obvious outrage came, Microsoft cast themselves as benevolently willing to amend the policy and allow FOSS on the Microsoft Store. Of course, we again (as we did then) immediately call on Microsoft to reverse their new anti-FOSS Microsoft Store Policies and make it explicitly clear in these Policies that selling open source is not only allowed but encouraged.

Nevertheless, we're cognizant that Microsoft probably planned all this, anyway — including the community outrage followed by their usual political theater of feigned magnanimity. It seems this is just Microsoft's latest effort to curtail the forms of FOSS activity that don't directly benefit them. Microsoft may say that they love Open Source, but only so far as they exclusively are the ones who profit from FOSS on their platforms.

Update on 2022-07-08: After we and others pointed out this problem, a Microsoft employee claimed via Twitter that they would “delay enforcement” of their new anti-FOSS regulation. We do hope Microsoft will ultimately rectify the matter, and look forward to the change they intend to enact later. Twitter is a reasonable place to promote such a change once it's made, but an indication of non-enforcement by one executive on their personal account is a suboptimal approach. This is a precarious situation for FOSS projects who currently raise funds on the Microsoft Store; they deserve a definitive answer.

Given the tight timetable (just five days!) until the problematic policy actually does go into effect, we call on Microsoft to officially publish a corrected policy now that addresses this point and move the roll-out date at least two months into the future. (We suggest September 16, 2022.) This will allow FOSS projects to digest the new policy with a reasonable amount of time, and give Microsoft time to receive feedback from the impacted projects and FOSS experts.

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Tags: conservancy, GPL, software freedom for everyone

Give Up GitHub: The Time Has Come!

by Denver Gingerich and Bradley M. Kuhn on June 30, 2022

Those who forget history often inadvertently repeat it. Some of us recall that twenty-one years ago, the most popular code hosting site, a fully Free and Open Source (FOSS) site called SourceForge, proprietarized all their code — never to make it FOSS again. Major FOSS projects slowly left SourceForge since it was now, itself, a proprietary system, and antithetical to FOSS. FOSS communities learned that it was a mistake to allow a for-profit, proprietary software company to become the dominant FOSS collaborative development site. SourceForge slowly collapsed after the DotCom crash, and today, SourceForge still refuses to solve these problems⁰. We learned a valuable lesson that was a bit too easy to forget — especially when corporate involvement manipulates FOSS communities to its own ends. We now must learn the SourceForge lesson again with Microsoft's GitHub.

GitHub has, in the last ten years, risen to dominate FOSS development. They did this by building a user interface and adding social interaction features to the existing Git technology. (For its part, Git was designed specifically to make software development distributed without a centralized site.) In the central irony, GitHub succeeded where SourceForge failed: they have convinced us to promote and even aid in the creation of a proprietary system that exploits FOSS. GitHub profits from those proprietary products (sometimes from customers who use it for problematic activities). Specifically, GitHub profits primarily from those who wish to use GitHub tools for in-house proprietary software development. Yet, GitHub comes out again and again seeming like a good actor — because they point to their largess in providing services to so many FOSS endeavors. But we've learned from the many gratis offerings in Big Tech: if you aren't the customer, you're the product. The FOSS development methodology is GitHub's product, which they've proprietarized and repackaged with our active (if often unwitting) help.

FOSS developers have been for too long the proverbial frog in slowly boiling water. GitHub's behavior has gotten progressively worse, and we've excused, ignored, or otherwise acquiesced to cognitive dissonance. We at Software Freedom Conservancy have ourselves been part of the problem; until recently, even we'd become too comfortable, complacent, and complicit with GitHub. Giving up GitHub will require work, sacrifice and may take a long time, even for us: we at Software Freedom Conservancy historically self-hosted our primary Git repositories, but we did use GitHub as a mirror. We urged our member projects and community members to avoid GitHub (and all proprietary software development services and infrastructure), but this was not enough. Today, we take a stronger stance. We are ending all our own uses of GitHub, and announcing a long-term plan to assist FOSS projects to migrate away from GitHub. While we will not mandate our existing member projects to move at this time, we will no longer accept new member projects that do not have a long-term plan to migrate away from GitHub. We will provide resources to support any of our member projects that choose to migrate, and help them however we can.

There are so many good reasons to give up on GitHub, and we list the major ones on our Give Up On GitHub site. We were already considering this action ourselves for some time, but last week's event showed that this action is overdue.

Specifically, we at Software Freedom Conservancy have been actively communicating with Microsoft and their GitHub subsidiary about our concerns with “Copilot” since they first launched it almost exactly a year ago. Our initial video chat call (in July 2021) with Microsoft and GitHub representatives resulted in several questions which they said they could not answer at that time, but would “answer soon”. After six months of no response, Bradley published his essay, If Software is My Copilot, Who Programmed My Software? — which raised these questions publicly. Still, GitHub did not answer our questions. Three weeks later, we launched a committee of experts to consider the moral implications of AI-assisted software, along with a parallel public discussion. We invited Microsoft and GitHub representives to the public discussion, and they ignored our invitation. Last week, after we reminded GitHub of (a) the pending questions that we'd waited a year for them to answer and (b) of their refusal to join public discussion on the topic, they responded a week later, saying they would not join any public nor private discussion on this matter because “a broader conversation [about the ethics of AI-assisted software] seemed unlikely to alter your [SFC's] stance, which is why we [GitHub] have not responded to your [SFC's] detailed questions”. In other words, GitHub's final position on Copilot is: if you disagree with GitHub about policy matters related to Copilot, then you don't deserve a reply from Microsoft or GitHub. They only will bother to reply if they think they can immediately change your policy position to theirs. But, Microsoft and GitHub will leave you hanging for a year before they'll tell you that!

Nevertheless, we were previously content to leave all this low on the priority list — after all, for its first year of existence, Copilot appeared to be more research prototype than product. Facts changed last week when GitHub announced Copilot as a commercial, for-profit product. Launching a for-profit product that disrespects the FOSS community in the way Copilot does simply makes the weight of GitHub's bad behavior too much to bear.

Our three primary questions for Microsoft/GitHub (i.e., the questions they had been promising answers to us for a year, and that they now formally refused to answer) regarding Copilot were:

1. What case law, if any, did you rely on in Microsoft & GitHub's public claim, stated by GitHub's (then) CEO, that: “(1) training ML systems on public data is fair use, (2) the output belongs to the operator, just like with a compiler”? In the interest of transparency and respect to the FOSS community, please also provide the community with your full legal analysis on why you believe that these statements are true.

   We think that we can now take Microsoft and GitHub's refusal to answer as an answer of its own: they obviously stand by their former CEO's statement (the only one they've made on the subject), and simply refuse to justify their unsupported legal theory to the community with actual legal analysis.

2. If it is, as you claim, permissible to train the model (and allow users to generate code based on that model) on any code whatsoever and not be bound by any licensing terms, why did you choose to only train Copilot's model on FOSS? For example, why are your Microsoft Windows and Office codebases not in your training set?

   Microsoft and GitHub's refusal to answer also hints at the real answer to this question, too: While GitHub gladly exploits FOSS inappropriately, they value their own “intellectual property” much more highly than FOSS, and are content to ignore and erode the rights of FOSS users but not their own.

3. Can you provide a list of licenses, including names of copyright holders and/or names of Git repositories, that were in the training set used for Copilot? If not, why are you withholding this information from the community?

   We can only wildly speculate as to why they refuse to answer this question. However, good science practices would mean that they could answer that question in any event. (Good scientists take careful notes about the exact inputs to their experiments.) Since GitHub refuses to answer, our best guess is that they don't have the ability to carefully reproduce their resulting model, so they don't actually know the answer to whose copyrights they infringed and when and how.

As a result of GitHub's bad actions, today we call on all FOSS developers to leave GitHub. We acknowledge that answering that call requires sacrifice and great inconvenience, and will take much time to accomplish. Yet, refusing GitHub's services is the primary power developers have to send a strong message to GitHub and Microsoft about their bad behavior. GitHub's business model has always been “proprietary vendor lock-in”. That's the very behavior FOSS was founded to curtail, and it's why quitting incumbent proprietary software in favor of a FOSS solution is often difficult. But remember: GitHub needs FOSS projects to use their proprietary infrastructure more than we need their proprietary infrastructure. Alternatives exist, albeit with less familiar interfaces and on less popular websites — but we can also help improve those alternatives. And, if you join us, you will not be alone. We've launched a website, GiveUpGitHub.org, where we'll provide tips, ideas, methods, tools and support to those that wish to leave GitHub with us. Watch that site and our blog throughout 2022 (and beyond!) for more.

Most importantly, we are committed to offering alternatives to projects that don't yet have another place to go. We will be announcing more hosting instance options, and a guide for replacing GitHub services in the coming weeks. If you're ready to take on the challenge now and give up GitHub today, we note that CodeBerg, which is based on Gitea implements many (although not all) of GitHub. Thus, we're also going to work on even more solutions, continue to vet other FOSS options, and publish and/or curate guides on (for example) how to deploy a self-hosted instance of the GitLab Community Edition.

Meanwhile, the work of our committee continues to carefully study the general question of AI-assisted software development tools. One recent preliminary finding was that AI-assisted software development tools can be constructed in a way that by-default respects FOSS licenses. We will continue to support the committee as they explore that idea further, and, with their help, we are actively monitoring this novel area of research. While Microsoft's GitHub was the first mover in this area, by way of comparison, early reports suggest that Amazon's new CodeWhisperer system (also launched last week) seeks to provide proper attribution and licensing information for code suggestions¹.

This harkens to long-standing problems with GitHub, and the central reason why we must together give up on GitHub. We've seen with Copilot, with GitHub's core hosting service, and in nearly every area of endeavor, GitHub's behavior is substantially worse than that of their peers. We don't believe Amazon, Atlassian, GitLab, or any other for-profit hoster are perfect actors. However, a relative comparison of GitHub's behavior to those of its peers shows that GitHub's behavior is much worse. GitHub also has a record of ignoring, dismissing and/or belittling community complaints on so many issues, that we must urge all FOSS developers to leave GitHub as soon as they can. Please, join us in our efforts to return to a world where FOSS is developed using FOSS.

We expect this particular blog post will generate a lot of discussion. We welcome you to interact with SFC staff on our public mailing list about this effort.

Footnotes

⁰SourceForge is now built as a (apparently proprietary) fork of a different FOSS system (called Allura). SourceForge's CEO ignored our multiple inquiries asking if SourceForge really is running upstream Allura (i.e., has no proprietary modifications), and our repeated requests for a link that explains how a project can leave SourceForge for self-hosted Allura. The responses from SourceForge management were quite similar to those received since 2001 — when they first went proprietary.

¹However, we have not analyzed CodeWhisperer in depth so we cannot say for sure if Amazon's implementation is compliant with the respective licenses. Nevertheless, Amazon's behavior here shows sharp contrast with Microsoft's GitHub: Amazon acknowledges the obvious fact that there are license obligations that deserve attention and care when building AI-assisted programming solutions.

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Tags: conservancy, GPL, Git, licensing, FOSS Sustainability

A Federal Hearing about Rights under GPL

by Bradley M. Kuhn on May 11, 2022

Possible Opportunity for the Public To Hear Oral Arguments in Key GPL Enforcement Case

In our previous update regarding our copyleft enforcement lawsuit against Vizio, we talked about how Vizio “removed” the case to USA federal court (namely, the Central District of California), and how we filed a motion to “remand” the case back to state court. While this all seems like minor legal wrangling early in a case, this very first skirmish in our case goes to the very heart of the right for software repair for consumers. While it won't be a final decision in the case, this motion will be the first indication whether the federal courts view the GPL as purely a copyright license, or as a contract, or as both. That question has been central to legal debate about the GPL for decades, and, thanks to our case, for the first time, a federal Court will directly consider this question.

Our view (and the view of many attorneys whose opinions we trust) and which is supported by substantial case law, is that the GPL functions as both a copyright license and a contract, and that third parties who receive distribution of GPL'd (and LGPL'd) software are third-party beneficiaries. We've done both copyright-based and contract-based enforcement, and both have their advantages. Contract-based enforcement as a third-party has advantages that are central to the GPL's policy goals. Consumers are the first to discover violations in the first place. Consumers are the most likely to utilize complete, corresponding source code (CCS) to enhance their use of the products they have purchased. Third-party, contractual based enforcement gives consumers legal authority when they ask companies for access to the source code that should be available to them. In other words, this approach gives consumers the ability to ask the Court directly for the most important thing that copyleft assures: a right to receive the CCS and “the scripts used to control compilation and installation of the executable”. Indeed, in our suit we have asked only for access to the source code, not for any money.

Our case now is the first of its kind to adjudicate the third-party beneficiary contractual theory. We are excited that a federal district Court is poised to give its first answer to the central question to this endeavor, namely: “Are the GPL and LGPL merely copyright licenses, and thus preempted and only subject matter for the US federal courts, or can a third-party bring a contract claim in state court?” If this question intrigues you, we encourage you to read our motion for remand, Vizio's reply to that motion and our rebuttal reply.

Most importantly, clear your calendar for this Friday 13 May 2022 at 10:30 US/Pacific! While Judge Staton may chose to rule on this motion strictly based on those paper filings, the judge has scheduled a hearing for that date and time. What's more, anyone in the world can attend this hearing to listen! Instructions for how to attend are found on Judge Staton's website⁰.

While, as FOSS activists, we're very sad that the Judge has chosen to use a proprietary videochat platform, we're glad that PSTN dial-in is provided, and we'll be dialing in and encourage you to do so as well. Watch our microblog for live updates!

⁰ Please take careful note of the warning on the Judge's website: Recording, copying, photographing and rebroadcasting of court proceedings is prohibited by federal law. Remember: you can take as many notes as you like, and even live blog/microblog what you hear, but take great care to follow the directives on Judge Staton's website.

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Tags: conservancy, GPL, licensing

An Erroneous Preliminary Injunction Granted in Neo4j v. PureThink

by Bradley M. Kuhn on March 30, 2022

Update (2023-11-14): Unfortunately, the Court has made further bad decisions in this matter, and was not swayed by our expert report. If the SFC were the copyright holder of the text of the AGPLv3, or the trademark holder of the license's name, we would have intervened in this case to clarify these matters for the Court. Since the SFC did not create the AGPLv3 (our employees have been involved in GPLv3-related drafting, but not on behalf of SFC), filing the expert report was the only action that SFC could take to assist in this matter. However, going forward, we do encourage anyone facing a “further restrictions” issue with copyleft license to contact us for support — so that those who care about the future of copyleft can coordinate a response together. Note that the case has still not reached the appeal stage.

(Original blog post follows:)

Bad Early Court Decision for AGPLv3 Has Not Yet Been Appealed

We at Software Freedom Conservancy proudly and vigilantly watch out for your rights under copyleft licenses such as the Affero GPLv3. Toward this goal, we have studied the Neo4j, Inc. v. PureThink, LLC ongoing case in the Northern District of California , and the preliminary injunction appeal decision in the Ninth Circuit Court this month. The case is complicated, and we've seen much understandable confusion in the public discourse about the status of the case and the impact of the Ninth Circuit's decision to continue the trial court's preliminary injunction while the case continues. While it's true that part of the summary judgment decision in the lower court bodes badly for an important provision in AGPLv3§7¶4, the good news is that the case is not over, nor was the appeal (decided this month) even an actual appeal of the decision itself! This lawsuit is far from completion.

A Brief Summary of the Case So Far

The primary case in question is a dispute between Neo4j, a proprietary relicensing company, against a very small company called PureThink, run by an individual named John Mark Suhy. Studying the docket of the case, and a relevant related case, and other available public materials, we've come to understand some basic facts and events. To paraphrase LeVar Burton, we encourage all our readers to not take our word (or anyone else's) for it, but instead take the time to read the dockets and come to your own conclusions.

After canceling their formal, contractual partnership with Suhy, Neo4j alleged multiple claims in court against Suhy and his companies. Most of these claims centered around trademark rights regarding “Neo4j” and related marks. However, the claims central to our concern relate to a dispute between Suhy and Neo4j regarding Suhy's clarification in downstream licensing of the Enterprise version that Neo4j distributed.

Specifically, Neo4j attempted to license the codebase under something they (later, in their Court filings) dubbed the “Neo4j Sweden Software License” — which consists of a LICENSE.txt file containing the entire text of the Affero General Public License, version 3 (“AGPLv3”) (a license that I helped write), and the so-called “Commons Clause” — a toxic proprietary license. Neo4j admits that this license mash-up (if legitimate, which we at Software Freedom Conservancy and Suhy both dispute), is not an “open source license”.

There are many complex issues of trademark and breach of other contracts in this case; we agree that there are lots of interesting issues there. However, we focus on the matter of most interest to us and many FOSS activists: Suhy's permissions to remove the “Commons Clause”. Neo4j accuses Suhy of improperly removing the “Commons Clause” from the codebase (and subsequently redistributing the software under pure AGPLv3) in paragraph 77 of their third amended complaint. (Note that Suhy denied these allegations in court — asserting that his removal of the “Commons Clause” was legitimate and permitted.

Neo4j filed for summary judgment on all the issues, and throughout their summary judgment motion, Neo4j argued that the removal of the “Commons Clause” from the license information in the repository (and/or Suhy's suggestions to others that removal of the “Commons Clause” was legitimate) constituted behavior that the Court should enjoin or otherwise prohibit. The Court partially granted Neo4j's motion for summary judgment. Much of that ruling is not particularly related to FOSS licensing questions, but the section regarding licensing deeply concerns us. Specifically, to support the Court's order that temporarily prevents Suhy and others from saying that the Neo4j Enterprise edition that was released under the so-called “Neo4j Sweden Software License” is a “free and open source” version and/or alternative to proprietary-licensed Neo4j EE, the Court held that removal of the “Commons Clause” was not permitted. (BTW, the court confuses “commercial” and “proprietary” in that section — it seems they do not understand that FOSS can be commercial as well.)

In this instance, we're not as concerned with the names used for the software; as much as the copyleft licensing question — because it's the software's license, not its name, that either assures or prevents users to exercise their fundamental software rights. Notwithstanding our disinterest in the naming issue, we'd all likely agree that — if “AGPLv3 WITH Commons-Clause” were a legitimate form of licensing — such a license is not FOSS. The primary issue, therefore, is not about whether or not this software is FOSS, but whether or not the “Commons Clause” can be legitimately removed by downstream licensees when presented with a license of “AGPLv3 WITH Commons-Clause”. We believe the Court held incorrectly by concluding that Suhy was not permitted to remove the “Commons Clause”. Their order that enjoins Suhy from saying that such removal is permitted is problematic because the underlying holding (if later upheld on appeal) could seriously harm FOSS and copyleft.

The Confusion About the Appeal

Because this was an incomplete summary judgment and the case is ongoing, the injunction against Suhy's on making such statements is a preliminary injunction, and cannot be made permanent until the case actually completes in the trial court. The decision by the Ninth Circuit appeals court regarding this preliminary injunction has been widely reported by others as an “appeal decision” on the issue of what can be called “open source”. However, this is not an appeal of the entire summary judgment decision, and certainly not an appeal of the entire case (which cannot even been appealed until the case completes). The Ninth Circuit decision merely affirms that Suhy remains under the preliminary injunction (which prohibits him and his companies from taking certain actions and saying certain things publicly) while the case continues. In fact, the standard that an appeals Court uses when considering an appeal of a preliminary injunction differs from the standard for ordinary appeals. Generally speaking, appeals Courts are highly deferential to trial courts regarding preliminary injunctions, and appeals of actual decisions have a much more stringent standard.

The Affero GPL Right to Restriction Removal

In their partial summary judgment ruling, the lower Court erred because they rejected an important and (in our opinion) correct counter-argument made by Suhy's attorneys. Specifically, Suhy's attorneys argued that Neo4j's license expressly permitted the removal of the “Commons Clause” from the license. AGPLv3 was, in fact, drafted to permit such removal in this precise fact pattern.

Specifically, the AGPLv3 itself has the following provisions (found in AGPLv3§0 and AGPLv3§7¶4):

• “This License” refers to version 3 of the GNU Affero General Public License.
• “The Program” refers to any copyrightable work licensed under this License. Each licensee is addressed as “you”.
• 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.

That last term was added to address a real-world, known problem with GPLv2. Frequently throughout the time when GPLv2 was the current version, original copyright holders and/or licensors would attempt to license work under the GPL with additional restrictions. The problem was rampant and caused much confusion among licensees. As an attempted solution, the FSF (the publisher of the various GPL's) loosened its restrictions on reuse of the text of the GPL — in hopes that would provide a route for reuse of some GPL text, while also avoiding confusion for licensees. Sadly, many licensors continued to take the confusing route of using the entire text a GPL license with an additional restriction — attached either before or after, or both. Their goals were obvious and nefarious: they wanted to confuse the public into “thinking” the software was under the GPL, but in fact restrict certain other activities (such as commercial redistribution). They combined this practice with proprietary relicensing (i.e., a sole licensor selling separate proprietary licenses while releasing a (seemingly FOSS) public version of the code as demoware for marketing). Their goal is to build on the popularity of the GPL, but in direct opposition to the GPL's policy goals; they manipulate the GPL to open-wash bad policies rather than give actual rights to users. This tactic even permitted bad actors to sell “gotcha” proprietary licenses to those who were legitimately confused. For example, a company would look for users operating commercially with the code in compliance with GPLv2, but hadn't noticed the company's code had the statement: “Licensed GPLv2, but not for commercial use”. The user had seen GPLv2, and knew from its brand reputation that it gave certain rights, but hadn't realized that the additional restriction outside of the GPLv2's text might actually be valid. The goal was to catch users in a sneaky trap.

Neo4j tried to use the AGPLv3 to set one of those traps. Neo4j, despite the permission in the FSF's GPL FAQ to “use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble”, left the entire AGPLv3 intact as the license of the software — adding only a note at the front and at the end. However, their users can escape the trap, because GPLv3 (and AGPLv3) added a clause (which doesn't exist in GPLv2) to defend users from this. Specifically, AGPLv3§7¶4 includes a key provision to help this situation.

Specifically, the clause was designed to give more rights to downstream recipients when bad actors attempt this nasty trick. Indeed, I recall from my direct participation in the A/GPLv3 drafting that this provision was specifically designed for the situation where the original, sole copyright holder/licensor⁰ added additional restrictions. And, I'm not the only one who recalls this. Richard Fontana (now a lawyer at IBM's Red Hat, but previously legal counsel to the FSF during the GPLv3 process), wrote on a mailing list¹ in response to the Neo4j preliminary injunction ruling:

For those who care about anecdotal drafting history … the whole point of the section 7 clause (“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.”) was to address the well known problem of an original GPL licensor tacking on non-GPL, non-FOSS, GPL-norm-violating restrictions, precisely like the use of the Commons Clause with the GPL. Around the time that this clause was added to the GPLv3 draft, there had been some recent examples of this phenomenon that had been picked up in the tech press.

Fontana also pointed us to the FSF's own words on the subject, written during their process of drafting this section of the license (emphasis ours):

Unlike additional permissions, additional requirements that are allowed under subsection 7b may not be removed. The revised section 7 makes clear that this condition does not apply to any other additional requirements, however, which are removable just like additional permissions. Here we are particularly concerned about the practice of program authors who purport to license their works under the GPL with an additional requirement that contradicts the terms of the GPL, such as a prohibition on commercial use. Such terms can make the program non-free, and thus contradict the basic purpose of the GNU GPL; but even when the conditions are not fundamentally unethical, adding them in this way invariably makes the rights and obligations of licensees uncertain.

While the intent of the original drafter of a license text is not dispositive over the text as it actually appears in the license, all this information was available to Neo4j as they drafted their license. Many voices in the community had told them that provision in AGPLv3§7¶4 was added specifically to prevent what Neo4j was trying to do. The FSF, the copyright holder of the actual text of the AGPLv3, also publicly gave Neo4j permission to draft a new license, using any provisions they like from AGPLv3 and putting them together in a new way. But Neo4j made a conscious choice to not do that, but instead constructed their license in the exact manner that allowed Suhy's removal of the “Commons Clause”.

In addition, that provision in AGPLv3§7¶4 has little meaning if it's not intended to bind the original licensor! Many other provisions (such as AGPLv3§10¶3) protect the users against further restrictions imposed later in the distribution chain of licensees. This clause was targeted from its inception against the exact, specific bad behavior that Neo4j did here.

We don't dispute that copyright and contract law give Neo4j authority to license their work under any terms they wish — including terms that we consider unethical or immoral. In fact, we already pointed out above that Neo4j had permission to pick and choose only some text from AGPLv3. As long as they didn't use the name “Affero”, “GNU” or “General Public” or include any of the Preamble text in the name/body of their license — we'd readily agree that Neo4j could have put together a bunch of provisions from the AGPLv3, and/or the “Commons Clause”, and/or any other license that suited their fancy. They could have made an entirely new license. Lawyers commonly do share text of licenses and contracts to jump-start writing new ones. That's a practice we generally support (since it's sharing a true commons of ideas freely — even if the resulting license might not be FOSS).

But Neo4j consciously chose not to do that. Instead, they license their software “subject to the terms of the GNU AFFERO GENERAL PUBLIC LICENSE Version 3, with the Commons Clause”. (The name “Neo4j Sweden Software License” only exists in the later Court papers, BTW, not with “The Program” in question.) Neo4j defines “This License” to mean “version 3 of the GNU Affero General Public License.”. Then, Neo4j tells all licensees that “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”. Yet, after all that, Neo4j had the audacity to claim to the Court that they didn't actually mean that last sentence, and the Court rubber-stamped that view.

Simply put, the Court erred when it said: “Neither of the two provisions in the form AGPLv3 that Defendants point to give licensees the right to remove the information at issue.”. The Court then used that error as a basis for its ruling to temporarily enjoin Suhy from stating that software with “Commons Clause” removed by downstream is “free and open source”, or tell others that he disagrees with the Court's (temporary) conclusion about removing the “Commons Clause” in this situation.

What Next?

The case isn't over. The lower Court still has various issues to consider — including a DMCA claim regarding Suhy's removal of the “Commons Clause”. We suspect that's why the Court only made a preliminary injunction against Suhy's words, and did not issue an injunction against the actual removal of the clause! The issue as to whether the clause can be removed is still pending, and the current summary judgment decision doesn't address the DMCA claim from Neo4j's complaint.

Sadly, the Court has temporarily enjoined Suhy from “representing that Neo4j Sweden AB’s addition of the Commons Clause to the license governing Neo4j Enterprise Edition violated the terms of AGPL or that removal of the Commons Clause is lawful, and similar statements”. But they haven't enjoined us, and our view on the matter is as follows:

Clearly, Neo4j gave explicit permission, pursuant to the AGPLv3, for anyone who would like to to remove the “Commons Clause” from their LICENSE.txt file in version 3.4 and other versions of their Enterprise edition where it appears. We believe that you have full permission, pursuant to AGPLv3, to distribute that software under the terms of the AGPLv3 as written. In saying that, we also point out that we're not a law firm, our lawyers are not your lawyers, and this is not legal advice. However, after our decades of work in copyleft licensing, we know well the reason and motivations of this policy in the license (described above), and given the error by the Court, it's our civic duty to inform the public that the licensing conclusions (upon which they based their temporary injunction) are incorrect.

Meanwhile, despite what you may have read last week, the key software licensing issues in this case have not been decided — even by the lower Court. For example, the DMCA issue is still before the trial court. Furthermore, if you do read the docket of this case, it will be obvious that neither party is perfect. We have not analyzed every action Suhy took, nor do we have any comment on any action by Suhy other than this: we believe that Suhy's removal of the “Commons Clause” was fully permitted by the terms of the AGPLv3, and that Neo4j gave him that permission in that license. Suhy also did a great service to the community by taking action that obviously risked litigation against him. Misappropriation and manipulation of the strongest and most freedom-protecting copyleft license ever written to bolster a proprietary relicensing business model is an affront to FOSS and its advancement. It's even worse when the Courts are on the side of the bad actor. Neo4j should not have done this.

Finally, we note that the Court was rather narrow on what it said regarding the question of “What Is Open Source?”. The Court ruled that one individual and his companies — when presented with ambiguous licensing information in one part of a document, who then finds another part of the document grants permission to repair and clarify the licensing information, and does so — is temporarily forbidden from telling others that the resulting software is, in fact, FOSS, after making such a change. The ruling does not set precedent, nor does it bind anyone other than the Defendants as to what they can or cannot say is FOSS, which is why we can say it is FOSS, because the AGPLv3 is an OSI-approved license and the AGPLv3 permits removal of the toxic “Commons Clause” in this situation.

We will continue to follow this case and write further when new events occur..

⁰ We were unable to find anywhere in the Court record that shows Neo4j used a Contributor Licensing Agreement (CLA) or Copyright Assignment Agreement (©AA) that sufficiently gave them exclusive rights as licensor of this software. We did however find evidence online that Neo4j accepted contributions from others. If Neo4j is, in fact, also a licensor of others' AGPLv3'd derivative works that have been incorporated into their upstream versions, then there are many other arguments (in addition to the one presented herein) that would permit removal of the “Commons Clause”. This issue remains an open question of fact in this case.

¹ Fontana made these statements on a mailing list governed by an odd confidentiality rule called CHR (which was originally designed for in-person meetings with a beginning and an end, not a mailing list). Nevertheless, Fontana explicitly waived CHR (in writing) to allow me to quote his words publicly.

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Tags: conservancy, GPL, law