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How this database legal war could be decided by the name given to this license

Neo4j v PureThink rumbles on

Bradley Kuhn, policy fellow at the Software Freedom Conservancy, claims a California federal court has misinterpreted version 3 of GNU Affero General Public License (AGPLv3) by allowing it to be combined with the Common Clause software license.

Kuhn, who created the Affero clause in the AGPLv1 and co-drafted v3, expects to serve as an expert witness for defendants PureThink and founder John Mark Suhy, who were sued by database biz Neo4j in November 2018, for alleged trademark and competition law violations.

PureThink at the time distributed database software called ONgDB, which was marketed as an open-source licensed version of Neo4j EE.

Neo4j EE is under a combined AGPLv3+Commons Clause license – the Commons Clause modified the APGLv3 by adding a restriction that forbids the sale of the software. However, PureThink offered a forked version of the Neo4j EE database software under the APGLv3 alone, having removed the Commons Clause from its version of the software.

So Neo4j and its Swedish subsidiary sued PureThink and others claiming that they had violated the license terms and had infringed Neo4j's trademarks.

In May 2021, Neo4j won a partial summary judgment [PDF] when the judge overseeing the case granted the company's request for a temporary injunction based on its trademark and unfair competition claims.

PureThink was enjoined – until the matter can be resolved – from "advertising, promoting, representing or referring to ONgDB as a free and open source drop-in replacement for Neo4j Enterprise Edition" and making false representations about ONgDB to customers.

The US Ninth Circuit Court of Appeals subsequently upheld that injunction, and the case has continued so far.

Among the remaining disputed issues to be resolved, the most important for the Free and Open Source Software (FOSS) community is whether Neo4j's concatenation of the AGPLv3 and Commons Clause is allowed.

Kuhn, in an expert report [PDF] prepared for the case, acknowledges that the AGPLv3 language can be re-mixed and used in another license, as long as that license is not called the AGPLv3. He cites MongoDB's modified AGPLv3 license, referred to as the Server-Side Public License, as an example of how the AGPLv3 can be altered into something that's not a FOSS license.

But if the license is referred to as the AGPLv3, then its Further Restrictions Clause – which allows users of APGLv3 licensed software to remove added licensing terms – should apply. If the court accepts that argument, it would be a significant reversal: PureThink would be allowed to fork Neo4J EE under the AGPLv3.

A trial date has yet to be set but several possibilities in July, 2023, have been proposed. ®

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