Client beware: Modified AGPLv3 eliminates freedoms, adds appropriate complications

In a prior post, we reported on a resolution from a U.S. district court conserving that it became once wrong promoting for a company to claim that tool licensed under the Affero Overall Public License version 3 with the addition of the Commons Clause (referred to within the case because the “Neo4j Sweden Instrument License”) became once “free and inaugurate supply” tool. Unfortunately that case incorporates but another resolution that is already raising issues among the inaugurate supply group.

Defendants on this case had forked the Neo4j tool and eliminated the Commons Clause from their now-AGPLv3 licensed fork. They did this counting on AGPLv3 Section 7 that enables a licensee to desire any “extra restriction” – similar to non-commercial use – imposed past those listed in AGPLv3. On the opposite hand, the court held that the defendants were no longer allowed to redistribute the tool without the Commons Clause license.

That conclusion goes against the intent of the drafters of the AGPLv3. The GPLv3 Second Discussion Draft Rationale says in footnote 73 that the restriction became once geared toward the copyright owners themselves: “Right here we’re particularly interested by the follow of program authors who purport to license their works under the GPL with a further requirement that contradicts the terms of the GPL, similar to a prohibition on commercial use.”

On the opposite hand, the Neo4j district court reached a phenomenal conclusion, with the mediate counting on his have conception in one other, earlier case against connected defendants, Neo4j, Inc. v. Graph Foundation, Inc. The Commons Clause is now not any longer a stand-on my own license however designed as a modifier to an inaugurate supply license. The Commons Clause adds a restriction on “Promoting” tool, with “Promoting” a defined interval of time of unclear scope. There would possibly maybe be no longer any quiz that adding the Commons Clause makes a free and inaugurate supply license non-free, which the FAQs for the Clause itself tell.

The half of the AGPLv3 license defendants relied on to desire the Commons Clause says that “If the Program as to receive it, or any half of it, incorporates a belief pointing out that it’s governed by this License alongside with a interval of time which shall be a extra restriction, you too can desire that interval of time.” Why didn’t the court allow the elimination of the Commons Clause, and thus take that the distribution of the fork under the AGPLv3 on my own became once because it shall be advertised as inaugurate supply tool?

The trial court held that this provision within the AGPLv3 applies most efficient to downstream licensees, no longer when the fresh licensor adds them:

Neither of the two provisions within the fabricate AGPLv3 that Defendants present give licensees the honest to desire the suggestions at tell. Section 10 of the AGPLv3, which is integrated into the Neo4J Sweden Instrument License, states: “That you just would be in a position to well most certainly also no longer impose any extra restrictions on the exercise of rights granted or affirmed under this License.” Section 7 states: “[i]f the Program as to receive it, or any half of it, incorporates a belief pointing out that it’s governed by this License alongside with a interval of time which shall be a extra restriction, you too can desire that interval of time.” Defendants argue that these provisions mean that “there will also be no liability for taking away the additional licensing restrictions which Neo4j integrated into the license,” specifically the Commons Clause. As Plaintiffs demonstrate, on the opposite hand, the AGPLv3 defines “you” because the licensee, no longer the licensor. AGPL § 0 (“Every licensee is addressed as ‘you’”). Thus, read because it shall be, Sections 7 and 10 limit a licensee from imposing extra restrictions, however attain no longer limit a licensor from doing so. Certainly, it would possibly maybe in point of fact well be opposite to principles of contract and copyright legislation to define these provisions as limiting Neo4J Sweden’s racy honest to license its copyrighted tool under terms of its choosing.

PureThink has now withdrawn consideration of this quiz from the lawsuit, so this would possibly maybe maybe even be up to one other birthday celebration to anxiousness the correctness of the court’s conception.

Why this issues

There are plenty of lessons to be learned from this. Right here’s an surprising . The Instrument Freedom Conservancy referred to because it “wrong.” It became once the intention of the FSF (footnote 73) that if the licensor added more restrictions, the downstream customers can even desire them.

Nevertheless on the end of the day, courts define the which implies of appropriate agreements and, no topic how knowledgeable the drafter, the final result shall be surprising. Right here’s one reason why the license review route of is so rigorous. An OSI-licensed license shall be extinct for decades to reach and we attain our most efficient to make certain that that they’ll be interpreted as intended.

It’s a ways furthermore an illustration that combining an inaugurate supply license with other terms will kind a new license that is neither OSI-licensed nor seemingly one who can accumulate approval. Any effort to trade the terms of an inaugurate supply license will have to be met with suspicion because they’re seemingly designed to take away freedoms, or else an already OSI-licensed license would were upright. The subterfuge is designed to “inaugurate wash” the tool, claiming to utilize an inaugurate supply license and hoping no one seems too fastidiously.

As a , the utilization of any tool under a non-OSI-licensed licensing aggregate requires knowledgeable recommendation on the scope of rights being granted. Nevertheless this largely defeats the motive of the utilization of an inaugurate supply license, which is to count on the group consensus that the license delivers your complete rights valuable to skills the tool without negotiating with its makers and most certainly furthermore to take perfect thing about the community possess that turns into on hand when the utilization of a license that every one know and predicament. Sticking to OSI-licensed licenses is the skill to verify everybody’s expectations are met.