The case before the Ninth Circuit is the appeal of Neo4j, Inc. v. PureThink, LLC. The case involves, among other issues, the application of Section 7 of the GNU AGPLv3. In the case, Neo4j appended an additional nonfree commercial restriction, the Commons Clause, to a verbatim version of the GNU AGPLv3 in a version of its software. PureThink subsequently removed this clause from its license, based on the following language in Section 7:

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.

The FSF's position on such confusing licensing practices has always been clear: the GNU licenses explicitly allow users to remove restrictions incompatible with the four freedoms. This position flows from the text of the licenses, and was announced as early as the the drafting process of GNU GPLv3, which was released in 2007. (The GNU AGPLv3 is an extended version.) The GPLv3 Second Discussion Draft Rationale states as follows:

Here we are particularly concerned about the practice of program authors who purport to license their works under the GPL with an additional requirement that contradicts the terms of the GPL, such as a prohibition on commercial use. Such terms can make the program non-free, and thus contradict the basic purpose of the GNU GPL; but even when the conditions are not fundamentally unethical, adding them in this way invariably makes the rights and obligations of licensees uncertain.

The FSF submitted its amicus brief in response to a pleading entitled "Appellees' Opposition to Motion for Leave to File Amicus Curiae Brief by Software Freedom Conservancy, Inc. (SFC) in Support of Defendants-Appellants" (the "Opposition"), in which Neo4j asked the Court of Appeals not to consider an amicus brief submitted by the SFC, which eloquently sought to point out the errors of the District Court in interpreting the GNU AGPLv3, Section 7.

"As our amicus brief explains, the FSF previously pushed Neo4j to correct their abuse of the AGPL," said Zoë Kooyman, executive director of the FSF. "Their misstatements and baseless arguments in their opposition have now compelled the FSF to step in again, to set the record straight regarding the FSF and its intent in drafting the GNU licenses -- to ensure the protection of software freedom."

Kooyman notes that the FSF's FAQ "Can I modify the GPL and make a modified license?" outlines the steps required to make modified versions of the GNU GPL, including removing specific sections of the license text and removing any references to its marks. These steps avoid confusing users of the GNU AGPLv3 and the FSF's trademarks included in it. Because the GNU licenses have free software's philosophy implicitly and explicitly ingrained in them, adding restrictions to a GNU license without using good general licensing practice as outlined in the FSF's FAQ results in an unauthorized derivative of the license.

FSF's amicus brief highlights, among other things, the cease and desist letter sent to Neo4j in November 2023, in which the FSF laid out a detailed explanation of its position on the confusing license Neo4j created, stated that Neo4j was using the FSF's rights related to the GNU AGPLv3 "in a confusing and unauthorized manner," and urged Neo4j to alleviate this confusion. Following the FSF's letter, Neo4j eventually removed all the infringing files from its repositories, and ceased to offer its software as free software under the GNU AGPLv3, thus implicitly conceding that the FSF's position regarding the Commons Clause was correct.

"In our brief, we provide references to pertinent documents that will help the Court understand our position and the license's intended operation. All courts, including the courts in this case, should consider the FSF's intent in drafting the GNU licenses when interpreting provisions of these licenses," said Krzysztof Siewicz, the FSF's licensing and compliance manager.

The FSF followed the case as a part of its efforts to protect free software against confusing licensing. Kooyman continues: "The GNU licenses were designed to empower users and we will continue to make sure this is understood."

You can review the FSF's amicus brief in full here. To further support this work, you can support the 501(c)(3) by joining the FSF as an associate member or by donating to the organization.

About the Free Software Foundation

The FSF was founded in 1985 to promote and protect computer users' right to use, study, copy, modify, and redistribute computer programs. Over the years it has addressed new challenges, resulting for example in releasing new versions of FSF's GNU family of licenses. The current rapid development and public interest in machine learning applications is another opportunity for the FSF to explore a moral and ethical question, clarifying what it takes for users to be able to control their own computing when using these applications.

Donations to support the FSF's work can be made at https://donate.fsf.org.

More information about the FSF, as well as important information for journalists and publishers, is at https://www.fsf.org/press.

Media Contact

Zoë Kooyman
Executive Director
campaigns@fsf.org
+1 (617) 542-5942

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