Neo4j open source to closed source enterprise version was forked, the court ruled: the use of "100% open source" for the branch is false propaganda

Recently, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling that any company that claims its software is "open source" without an open source license is false advertising.

The ruling stems from a 2018-2019 trademark and copyright infringement case between Neo4j (an open source high-performance NoSQL graph database) and its Swedish subsidiary and the Graph Foundation, PureThink and iGov.

As the trial court described it: Neo4j, Inc. went through multiple software releases and licensing options, eventually ending with what the court called "the Sweden Software License" because the licensor was the plaintiff's Swedish subsidiary.

It is reported that the "the Sweden Software License" is just a combination of the limitations of the Affero General Public License and the "Public Terms".

The defendant in this case renamed the software as "OpenNativeGraphDatabase" (ONgDB) through fork, and started to release its version as only authorized AGPLv3, and promoted ONgDB as "free and open source", "100 % Free and Open Source" and "100% Open Source".

ONgDB is a fork of Neo4j EE, which dropped the GNU Affero General Public License (AGPL) in May 2018 and adopted a new license that includes AGPLv3 as well as other restrictions specified in the Public Terms License .

The new Neo4j EE license prohibits non-paying users of the software from reselling the code or providing other support services, so it is not "open source" as defined by the open source specification.

The Graph Foundation, PureThink and iGov adopted ONgDB as the "free and open source" version of Neo4j to win more customers who preferred open source licenses, which greatly affected Neo4j's competitiveness in the industry.

As a result, in 2018 and 2019, Neo4j and its Swedish subsidiary filed legal claims against the above companies and their principals for issues such as trademark and copyright infringement.

There is no disagreement between the two parties that the license is not free due to the use of public terms, and no one has accused Neo4j of claiming that its software under the terms of AGPLv3+Commons is open source. However, the court held that it was inappropriate for the defender to remove the Commons clause, so the defender's claim that its ONgDB software was open source was false advertising.

The trial court held that it was wrong to characterize software under the Commons terms as "free and open source." This "deception" is also serious: "Because the defendants misrepresented ONgDB as a free version of Neo4j EE licensed under APGLv3, there is no doubt that this difference (free versus paid) exists that may influence customers' purchasing decisions. Accordingly, the court found that the defendant's statement that a "free and open source alternative" to Neo4j EE was available to customers was materially false.

In February 2021, the Graph Foundation published a blog post saying that the organization "has discontinued support for ONgDB versions 3.4, 3.5 and 3.6" and released ONGDB 1.0 replacing the AGPLv3 licensed Neo4j EE version 3.4.0 .rc02.

After the Graph Foundation settled its trademark and copyright business with the Neo4j database, it began to reconsider developing and distributing its open source native graph database (ONgDB). The Graph Foundation has agreed to no longer refer to a specific version of ONgDB, the Neo4j Enterprise fork, as the "100% free and open source version" of NeN4J EE.

In May 2021, the judge hearing the lawsuit against PureThink and iGov granted Neo4j's partial summary judgment motion and barred the defendants from infringing the company's Neo4j trademark, while also barring the defendants from promoting ONgDB "as a free, open-source alternative to Neo4j Enterprise Edition."

This year, after some defendants appealed against the verdict, the 9th U.S. Circuit Court of Appeals affirmed the lower court's ruling that the company's "claims that ONgDB is a 'free and open source' version of Neo4j EE are false." .

In this decision, the court only confirmed what is known: "Open source" is the term for software licensed under a specific type of license, but "whether the license is an OSI-approved license" is what allows users to adopt the software. a crucial factor.

If the defendant were only allowed to license its software as AGPLv3, none of its "100% open source" claims would involve false propaganda. However, since the addition of non-free sharing terms produces different licenses, the software cannot be characterized as "open source". In this case, if it is promoted as "free and open source", it is illegal and false advertising.