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False advertising to call software open source when it's not, says court

Strap in for a wild ride of forks, trademarks, and licensing

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."

On Thursday, the Open Source Initiative, which oversees the Open Source Definition and the licenses based on the OSD, celebrated the appeals court decision.

"Stop saying Open Source when it's not," the organization said 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."

In an email to The Register, Bruce Perens, creator of the Open Source Definition and open-source pioneer, observed, "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 recognizes it as a technical claim which can be fraudulent when misused."

Perens added that it's no surprise the court disallowed the removal of copyright holder Neo4j's Commons Clause terms.

"Even though the AGPL has some verbiage that allows such a removal, licenses are not all-powerful," he said. "They are really only good for enforcing that a party is a copyright infringer if they don't follow the terms. And the copyright holder themselves can not be an infringer of a work that they own, only that of others." ®

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