SFC's Policy Fellow Files Expert Report in Neo4j v. PureThink

Case about the “further restrictions” removal provision of the AGPLv3 continues after counterclaim filing

February 9, 2023

Update (2023-11-14): Unfortunately, the Court was not swayed by the expert report discussed below. 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 were 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.

(Original announcement follows:)

In the ongoing litigation — Neo4j, Inc. v. PureThink, LLC and John Mark Suhy (5:18-cv-07182) — in U.S. federal court in the Northern District of California, Software Freedom Conservancy (SFC)'s Policy Fellow, Bradley M. Kuhn, will serve as the Defendants' third-party expert on issues related to the AGPLv3. The Defendants' request for Kuhn's expertise comes after months of public discussion about previous preliminary actions in the Neo4j litigation.

As outlined in the Joint Case Management Statement, filed earlier this month, the key issue of concern in the FOSS community remains an unsettled controversy in this case. Specifically, the list of Legal and Factual Issues That Remain In Dispute filed with the Court includes: “whether removal of the Common’s [sic] Clause on Neo4J Sweden’s open source version of Neo4J software … was justified and authorized … based on the then standard application of the terms of the AGPL allowing removal of further restrictions”. Furthermore, Defendants note in the same filing that Kuhn's expert report bears heavily on the question of PureThink and Suhy's right to exercise the AGPLv3's “further restrictions” removal clause (found in AGPLv3§7¶4).

As often happens with complex litigation, prior news on this case have led many in the FOSS community to incorrectly believe that the issue of the right to remove the so-called “Commons Clause” when it is attached to AGPLv3 is now a settled question. However, the issue is still not fully litigated. Two weeks ago, Defendants filed their updated counterclaim. In its eighth clause of action, Defendants “request a declaration [from the Court] that the Commons Clause does not prevent PureThink [et al] … from providing professional services to users of the open source versions of Neo4J where the AGPL has a Commons Clause”.

SFC, which works to uphold users' rights with copyleft, gladly provides Kuhn's time to serve as an expert on this important issue of users' rights under the AGPLv3. While it is typical for outside experts to receive compensation, Kuhn will serve pro bono publico as an expert (with only travel expenses (to appear for depositions and trial) covered by the Defendants). SFC remains deeply concerned at the incorrect claims about AGPLv3§7¶4 that Neo4j has promulgated. SFC is happy to provide Kuhn's time and expertise in this matter.

As always, SFC does its work as transparently as possible. As such, we release today the expert report that Kuhn provided in this case. This expert report not only clears up past confusing and incorrect information promulgated on this matter in the media, but also provides a thorough summary of events leading up to the creation of the “further restrictions” removal provision found in AGPLv3 and GPLv3.

SFC encourages everyone who cares about the rights and freedoms guaranteed by copyleft licenses to review the expert report available here, and to follow the Neo4j case as it proceeds.