SFC Files Amicus Brief in Support of Users' Rights under AGPLv3§7

SFC Defends Copyleft Licensing in Important Federal Circuit Appeal

January 13, 2025

SFC filed an amicus brief in the ongoing case of Neo4j, Inc. v. PureThink, LLC, which is now appealed to the United States Court of Appeals for the Ninth Circuit. The appeal focuses on a downstream licensee's right under the Affero General Public License, version 3 (and similar rights under GPLv3 and LGPLv3) to remove “Further Restrictions” — even when such restrictions are put in place by original licensors. SFC was proud to stand up for this important right under copyleft, and appears to be the only organization that filed an amicus brief in this case.

While the case in the lower court covered many issues, SFC's amicus brief focuses on one key important issue: the right for licensees — be it for commercial or non-commercial reasons — to remove further restrictions placed by Neo4j — pursuant to this unqualified right enshrined in AGPLv3§7¶4:

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.

Neo4j had appended the non-free Commons Clause at the end of the the full, unmodified text of the AGPLv3 (including its original preamble) to create what Neo4j dubbed the “Neo4j Sweden Software License”. There was no dispute that the so-called “Commons Clause” was a “further restriction” that could be removed under AGPLv3 §7¶4. But Neo4j had argued (and the lower court agreed) that this right was in conflict with AGPLv3 §10¶3 (which, in part, prohibits licensees from adding “further restrictions”). Neo4j further argued (and the lower court agreed) that since §10¶3 did not mention licensors explicitly, then not only must licensors have the right to add “further restrictions” but this implicit right trumped the licensees' explicit right to remove such restrictions under §7¶4.

SFC's amicus brief in this case argues that the lower court erred when it agreed with Neo4j's interpretation of AGPLv3§§7/10. Neo4j included the entire text of the AGPLv3, including AGPLv3 §7 and the AGPLv3 preamble, and licensees legitimately were within their rights to follow what the terms said (as informed by the preamble) and remove the appended proprietarizing modifier. Our brief provided detailed legal analysis that we hope will convince the Court to uphold the principles of software freedom and users' rights under copyleft in this situation.

Amicus briefs take a great deal of effort, and unfortunately the appellate court is not obligated to give them any weight. Nevertheless, we do hope the Court and other organizations will hear our voice on this important matter. The language of AGPLv3§7¶4 and §10¶3 is found in other GPLs. The lower court's interpretation, if upheld on appeal, could radically alter the community's understanding of whether and how “further restrictions” (and not just the so-called “Commons Clause”) may be added and removed.

SFC thanks outside counsel Aaron Williamson who helped with this brief. You can review SFC's amicus brief in full here.