The Open Source Initiative Did Not Win Neo4j vs. PureThink

Should we stick to specific license names e.g. "GPL software" or "MIT software"? That's probably the safest as those usually include an actually recognized trademark.

[1] https://www.arp242.net/open-source.html

> going off this table [1] there is pretty wide disagreement of what constitutes open source between different groups

Since that's not what the table represents, that's not a reasonable conclusion supported by the data in the table alone. (Coincidentally, this is the same principle undergirding Kyle's issue with OSI's post drawing unsound inferences from the Neo4J Sweden decision.)

To start with, something can be GPL-incompatible without any implication about whether it's open source or not. In the second instance, something can be approved for use in the Debian project or not, but—again—that's a separate question from "Is there any legitimacy to the position that satisfying the criteria described in the Open Source Definition is a necessary precondition to being able to call something 'open source'?" NB: maintaining mental clarity about the separation between the legitimacy of that definition and the OSI's authority to "rule" on any given "record" (i.e. the legitimacy of the OSI's power, esp. in future findings) is important. Recognizing a definition as normative is a wholly separate matter from determining who gets to adjudicate whether something meets that standard.

> to claim without qualification that you alone get to define and arbitrate that seems pretty crazy to me

See, that's different even still! Agreeing that a given definition is legitimate is not the same as anointing any given group and its future findings as authoritative.

To use an example: we can agree that "fair use" is described in Title 17 and subsequent case law. In a fair use dispute, this would not be the point of contention—both parties would acknowledge this. Which party would prevail in their action, however, would depend on a finding of fact by the courts: how the definition applies to the parties' circumstances—not whether the definition is legitimate.

In the original filing, there were only essentially trademark complaints, although this was later amended to include a copyright complaint. The request for summary judgement didn't ask for summary judgement on all of the claims--only the trademark claim. Thus, the copyright violation bits are still a live controversy (undergoing discovery for roughly the next several months) and would presumably be resolved by the actual jury trial requested, whenever that comes about.

It would be extremely worrisome that the court admitted sub-licensors to add something like the Commons Clause to software they get under the GPL-like licenses; it would completely invalidate them for all purposes, turning them into MIT-like permissive licenses instead.

I believe that similar reasoning would apply to the AGPL.

This has been always the point. All GPL licenses have a similar clause.

> All other non-permissive additional terms are considered "further restrictions" within the meaning of section 10. 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. If a license document contains a further restriction but permits relicensing or conveying under this License, you may add to a covered work material governed by the terms of that license document, provided that the further restriction does not survive such relicensing or conveying.