FYI: An appeals court may kill a GNU GPL software license
- Reference: 1740645073
- News link: https://www.theregister.co.uk/2025/02/27/adverse_appeals_court_ruling_could/
- Source link:
If the appellate court upholds that decision, which endorsed database maker Neo4j's right to amend the GNU Affero General Public License, [1]version 3 , governing the use of its software with new binding terms, current assumptions about the enforceability of copyleft licenses will no longer apply.
A summary of the situation: The GNU AGPLv3 is a free and open source software (FOSS) license [2]largely based on the [3]GNU GPLv3 , both of which are published by the Free Software Foundation (FSF). Neo4j provided database software under the AGPLv3, then tweaked the license, leading to [4]legal battles over forks of the software. The AGPLv3 includes language that says any added restrictions or requirements are removable, meaning someone could just file off Neo4j's changes to the usage and distribution license, reverting it back to the standard AGPLv3, which the biz has argued and successfully fought against in that California district court.
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Now the matter, the validity of that modified FOSS license, is before an appeals court in the USA.
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"I don't think the community realizes that if the Ninth Circuit upholds the lower court’s ruling, it won’t just kill GPLv3," PureThink's John Mark Suhy told The Register .
"It will create a dangerous legal precedent that could be used to undermine all open-source licenses, allowing licensors to impose unexpected restrictions and fundamentally eroding the trust that makes open source possible."
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Perhaps equally concerning is the fact that Suhy, founder and CTO of PureThink and iGov (the two firms sued by Neo4j), and presently CTO of IT consultancy Greystones Group, is defending GPL licenses on his own, pro se , without the help of the FSF, founded by [9]Richard Stallman , creator of the GNU General Public License.
"I'm actually doing everything pro se because I used up all my savings to fight it in the lower court," said Suhy. "I'm surprised the Free Software Foundation didn't care too much about it. They always had an excuse about not having the money for it. Luckily the Software Freedom Conservancy came in and helped out there."
Asked to comment on why the FSF has chosen not to participate, a spokesperson for the non-profit said, "I cannot disclose anything on the FSF's legal strategies or elaborate on the complexities of the case.
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"However, I can state that the FSF does not allow the making or distributing of altered versions of the licenses, including the GNU AGPLv3, resulting in unauthorized derivative works and confusing users. The FSF is working to make sure this is understood."
In January, the Software Freedom Conservancy, an open source advocacy group that intervened to help Suhy several years ago, [11]submitted an amicus brief to the Ninth Circuit. The group said, "The lower court's interpretation, if upheld on appeal, could radically alter the community's understanding of whether and how 'further restrictions' ... may be added and removed."
The appeals court now has to decide whether to accept the friend-of-the-court filing – the plaintiff Neo4j has objected. And at some later date, the appeals court will render a decision.
In-depth
The issue before the appeals court boils down to the right to remove contractual restrictions added to the terms of the APGL. This right is spelled out in [12]AGPLv3 , section 7, paragraph 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." Other GPLs contain similar terms.
The California court issued a partial summary judgment in 2022. The court did affirm that a license created by combining the AGPL with other non-open-source terms cannot be called "free and open source." But it also accepted Neo4j's interpretation of the license such that licensors (those licensing software) could add additional restrictive terms but licensees (those using the software) could not remove those terms.
It was the removal of Neo4j's terms, as allowed under the AGPL, and the competition that ensued that sparked the litigation.
In May 2018, Neo4j dropped the GNU Affero General Public License (AGPL) for its Neo4j EE (enterprise edition) and replaced it with a new license that incorporated the AGPLv3 with the [13]Commons Clause license. The revised license disallowed non-paying software users from reselling the code or offering support services.
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As a result, Neo4j's open source code was forked under the name ONgDB, as allowed under AGPL, and offered by The Graph Foundation, PureThink, and iGov as a free, open source alternative that lacked the Common Clause restrictions added to Neo4j's software.
Then in 2018 and 2019, Neo4j and its Swedish subsidiary sued, claiming violations of its amended license and of its trademarks. The Graph Foundation settled in February 2021. And in May that year, Neo4j won a [18]partial summary judgment [PDF] against Suhy's PureThink and iGov.
Much of the case focused on trademark violations. But the court's preliminary injunction also included the following prohibition: Suhy was enjoined from "representing that Neo4j Sweden AB’s addition of the Commons Clause to the license governing Neo4j Enterprise Edition violated the terms of AGPL or that removal of the Commons Clause is lawful, and similar statements."
That's the court saying the AGPL can be modified with the addition of the Commons Clause license and that modification cannot be undone, despite what the AGPL says.
According to the Software Freedom Conservancy, US District Court Judge Edward J. Davila, of San Jose, California, [19]erred in his decision to accept Neo4j's interpretation of the AGPL. And the matter has been under appeal since then.
The appeal, however, presents some risk to the FOSS community because it might fail and set a precedent. Were Suhy to simply pay damages and move on, the district court's decision would be relevant mainly to that one case. Other litigation might cite the decision in arguments but it wouldn't be binding.
A ruling from the Ninth Circuit, however, can be expected to set a binding legal precedent within [20]its jurisdiction – the Western US, Alaska, Guam, and Hawaii – unless the Supreme Court gets involved.
So if the district court's decision is upheld, the law would support taking GPL code and adding restrictions that cannot be removed, contrary to the entire purpose of the GPL. It might also imperil Neo4j forks [21]ONgDB and [22]DozerDB .
Suhy said that he's unsure why the Free Software Foundation didn't choose to intervene.
"They actually did not want me to appeal," Suhy explained.
"I've actually had other organizations reach out to me and try to stop me from appealing. I basically said: Listen, this is my livelihood. I'm fighting for myself and protecting my family. Why don't you help me either by giving legal guidance or by providing a lawyer?
"I was willing to work with them. I want to make sure that we protect the license and make sure that there's no dangerous precedent. And the only thing that they could come up with was not to appeal, which I couldn't do."
On its [23]licensing page , Neo4j insists: "Neo4j is committed to open source. Neo4j Community Edition is fully open source, licensed and distributed under GPL v3.
"Neo4j offers a number of commercial licensing options, including free licenses for development, startups, academic-educational uses and of course, evaluation." ®
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[1] https://www.gnu.org/licenses/agpl-3.0.en.html
[2] https://www.gnu.org/licenses/why-affero-gpl.en.html
[3] https://www.gnu.org/licenses/gpl-3.0.en.html
[4] https://www.theregister.com/2022/03/17/court_open_source/
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/databases&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2Z8BF2PUkJZjo34YU3Dp2xgAAAUI&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/databases&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Z8BF2PUkJZjo34YU3Dp2xgAAAUI&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/databases&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Z8BF2PUkJZjo34YU3Dp2xgAAAUI&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/databases&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44Z8BF2PUkJZjo34YU3Dp2xgAAAUI&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[9] https://www.theregister.com/2019/09/17/richard_stallman_final_interview/
[10] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/databases&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33Z8BF2PUkJZjo34YU3Dp2xgAAAUI&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[11] https://sfconservancy.org/news/2025/jan/13/neo4j-amicus/
[12] https://www.gnu.org/licenses/agpl-3.0.en.html
[13] https://commonsclause.com/
[14] https://www.theregister.com/2025/02/13/wordpress_foundation_trademark_registrations_nixed/
[15] https://www.theregister.com/2025/01/10/german_router_maker_avm_lgpl/
[16] https://www.theregister.com/2025/01/04/pie_adblock_ublock_origin_code/
[17] https://www.theregister.com/2024/05/16/open_source_initiative_ai/
[18] https://storage.courtlistener.com/recap/gov.uscourts.cand.335295/gov.uscourts.cand.335295.118.0.pdf
[19] https://www.theregister.com/2022/04/02/court_neo4j_ruling/
[20] https://www.ca9.uscourts.gov/judicial-council/what-is-the-ninth-circuit/
[21] https://ongdb.com/
[22] https://dozerdb.org/
[23] https://neo4j.com/licensing/
[24] https://whitepapers.theregister.com/
Hasn't it been the case for years that the tenor was "OSS licenses need to prove their mettle in court, and the we will see that evil corps(tm) can't simply take the code and run off with it" - and now that moment seems to have come, and the FSF would rather not take that risk?
Is that a case of "open source is legally safe as long as nobody actually takes that legality up in court"?
There are a lot of legal weeds here
As I understand it, the specific issue at hand is now moot in that Neo4j comes with either a GPLv3 licence (community edition) or a fully commercial licence for the enterprise edition.
I am not a lawyer, but what seems to me to be going on here is an argument that once code has been released under (A)GPL terms then it can never been relicensed more restrictively because the more restrictive licence terms can simply be removed under the terms of the original licence. It would appear reasonable to me that you can't arbitrarily relicense a version of software that has already been released under a less restrictive licence (and the earlier versions of Neo4j remained available under their original licences) but I can't help feeling it would be to the ultimate detriment of Open Source if you could then never release new versions on a more restrictive basis (effectively the former Microsoft "cancer" argument).
It's worth reading the [1]original judgment as there's relevant background that casts the dispute in a rather different light.
However, the conclusions of the court case are not necessarily as they at first appear and there's an interesting [2]summary from a lawyer that explains why. It may not be a GPL software licence that's at stake, but a specific interpretation of a GPL software licence that might perhaps have been optimistic.
[1] https://writing.kemitchell.com/files/Neo4j-PureThink-Trial.pdf
[2] https://writing.kemitchell.com/2022/03/17/OSI-Neo4j-PureThink
Re: There are a lot of legal weeds here
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.
That is the kind of clause that is routinely ruled invalid in many contracts. I think the court can take exception to an attempt to preempt the law in such a way. There is also more than a little irony in any GPL licence talking about "restriction" because compared with most open source licences, all GPLs are considerably more restrictive.
Re: There are a lot of legal weeds here
> There is also more than a little irony in any GPL licence talking about "restriction" because compared with most open source licences, all GPLs are considerably more restrictive.
Irony? In the GPL?
Well, YES! I'd even add a "duh!" to that "yes".
From day one, the entire purpose of the GPL has been to explicitly use one set of restrictions - those applied to the (third-party) supplier of software - to remove restrictions set upon the receiver of the software.
Re: There are a lot of legal weeds here
Interesting summary.
1. It seems reasonable that the original publisher can release code under whatever licence or combination of licences they see fit and downstream can't use a clause from one licence to remove the other licence if it was released under a combination of licences. That's the original publisher's prerogative.
2. If it isn't obvious by now that the OSI is just yet another industry lobbying group whose main purpose is to allow its funders to help themselves to as much open source code as possible then it never will be.
Re: There are a lot of legal weeds here
> 1. It seems reasonable that the original publisher can release code under whatever licence or combination of licences they see fit and downstream can't use a clause from one licence to remove the other licence if it was released under a combination of licences. That's the original publisher's prerogative.
That is a misrepresentation of the situation. Or a very confusing way of phrasing it.
> whatever licence or combination of licences
That implies that you are referring to dual licensing, which is absolutely fine and dandy: vendor gives you the choice of two distinct licences, A and B, sitting in entirely different files and/or piles of paper; you pick the one you prefer and are bound by that.
> use a clause from one licence to remove the other licence
If you understand dual licensing then you are now saying that there is an attempt to use a clause from licence A to remove a clause from the text of licence B.
What is actually happening is that licence A has been modified to create A' by the addition of an extra clause. BUT licence A states that you the extra clause is of a form that can not be tacked onto it (note: it is not restricting the addition of *any* new clause, just those that fail the conditions laid out in licence A). And the wording of A' still contains that restriction - A' now contradicts itself. In all of this arguing over A and A', licence B has been and remains untouched.
Lawyers
So, the upshot is that no matter what any legal text says and how clearly it is written, lawyers can always argue it means the exact opposite. And win.
Cannot say I am surprised, but I am still disgusted.
If some company want to write proprietary code, no one is stopping them. But no, they always have to do this ‘open source’ bait and switch…
Re: Lawyers
> So, the upshot is that no matter what any legal text says and how clearly it is written, lawyers can always argue it means the exact opposite. And win.
Not quite. Almost, but not quite.
You forgot that they'll entirely fail to convert a proprietary licence into an open source licence. Not even a badly-worded "source included" licence.
And they'll wring their hands over that failure as they take the money.
Let me see if I get this straight. The FSF wanted this guy to pay damages and have his life destroyed because that does not set a legal precedent. Instead, the guy says he can't have his life destroyed without even fighting for it. Makes sense. Seeing that he's adamant on the appeal, FSF thus decides... to not help him at all, letting him go through with an appeal without any means to realistically have a fighting chance. An appeal which if (when?) it fails will be the first domino piece to kill the GPL. I see.
https://tenor.com/view/it%27s-fine-im-fine-its-fine-im-fine-fine-everything-is-fine-gif-4044255692100841679