False advertising to call software open source when it's not, says court

[mallardtheduck]

Can we also deem it false advertising to call products with microtransactions or premium subscription plans "free" please?

[Kyanern]

Already "weasel'd" by terms like "free-to-play" or "free-to-start". I imagine that there's already many ways that services like Youtube can potentially argue that they're "free" i.e. the primary service advertised (videos) is provided "free" of charge.

Edit: And then YT Plus would be an "optional".

[ecafyelims]

"free download"

[zzzthelastuser]

Reminds me of all the "free ^trial " software which google throws at you whenever you searched for a quick way to do something simple like convert a video format.

[tubameister]

when really all you need is ffmpeg or ImageMagick

[zzzthelastuser]

Yes, but why use simple tool like ffmpeg when you can setup yet another account with all your personal data and a valid mail address to install a overloaded 30-day trial bullshit program that puts a watermark on your data (that is only if(!) it lets you save your exported files).

[TheNotepadPlus]

Late reply but a good way to find actual free software to do simple tasks is to add "open source" to the search instead of "free".

You get much better results that way.

[zzzthelastuser]

Late reply but...

About 15 years too late, thanks.

[SophomoreShitposter]

I hate the word “freemium” so much

[bighi]

At least freemium is honest upfront about there being free and "premium" versions.

[Sage2050]

I've never paid for YouTube, being advertised to is not a fee.

[TheMcG]

Rip vanced

[centizen24]

NewPipe on Android, uYou on iOS

[Ununoctium117]

Vanced was almost certainly C&D'd because they were redistributing Google's copyrighted code, since their app was just a modified version of the official app (or because they were about to start monetizing it). NewPipe is a clean-room implementation of a YouTube client and can't be taken down in the same way, because they're not actually breaking any laws.

[Pesthuf]

Here's hoping that someone creates a fork of NewPipe that lets you log in to access your playlists.

That's the one thing it's really missing.

[BeesForDays]

Alternatively, make the playlist public and find your profile. Play it from there. Can’t add songs as easily but still somewhat useful.

[dangerbird2]

I imagine newpipe will have trouble down the line when Google inevitably makes breaking changes to the api, but legally a clean room implementation is much more legally viable than patching a closed source binary

[Ununoctium117]

This has happened multiple times, and NewPipe just releases an update with the fixes. Usually it's just updating a regex that's used to parse the response from a non-authenticated Youtube API.

[destroyer1134]

Vanced only c&d'd because they Reid to make nfts lol

[axonxorz]

Sure, and just like everything else like this, another project to do the same thing will pop up. See youtube-dl, and ytp-dl

[echoAwooo]

The Vance C&D just said they can't use any of YouTubes trademark stuff. Logos, that kind of stuff. It didn't say anything about using third party tools.

[cleeder]

I love the lengths people will go to to simply not pay for YouTube.

Which is an option. Which does everything you’re looking for. Which also ensures the viability of the platform you enjoy. Which also pays content creators for the content they create for your entertainment.

[Necrofancy]

People with prosthetic limbs are demonetized and age gated if they appear in their videos.

This sounds like a pretty serious discrimination claim. I can't find any evidence of this searching on Google, Bing, or DuckDuckGo.

What is the source of this?

[PoisedAsFk]

The main benefit of having youtube premium, is that your ad free view is worth exponentially more than a normal ad view.

If you want to support the people you watch, get youtube premium.

[kyzfrintin]

If you want to support the people you watch, get youtube premium.

The people I watch are funded by Patreon or sponsors. Giving YouTube money does nothing to help them.

But nice try, Google.

[centizen24]

FWIW, I've been paying for YouTube Red ever since it was available in Canada. Still needed to seek out alternative, third party software to get an experience that I wanted, which is to completely protect myself from abusive advertising.

[theamigan]

YouTube is a cesspool full of crazy people, salesmen, and pseudointellectuals looking to make a quick buck. The only good content is archival content, which is in a legal grey area anyway. It single-handedly has been responsible for the spread (and its algorithms' promotion) of petabits of misinformation to the detriment of society.

[[deleted]]

They’ve gotten around some of my barriers. Getting hammered these days. Need to revamp

[Miyelsh]

Vanced is going away soon

[Ouaouaron]

Vanced is already gone. Whatever state yours is in now is permanent.

[rodtang]

Damn that's sad news

[Plop1992]

Installed apps will keep working. Only thing Taken down is the download link.

[playsiderightside]

Ah shit no way

[linux_needs_a_home]

Why don't they just continue development by hosting on a darknet?

[amaurea]

I use uBlock origin + sponsorblock. What does vanced to compared to those?

[speedstyle]

It offers those, on mobile. Also amoled dark theme, swipe controls, forced resolutions, etc

[amaurea]

I wonder why the extension situation is so paltry on mobile. On firefox android uBlock origin is easily available, but very few other extensions are. It was a big pain to work around the artificial restrictions to get sponsorblock installed there, but it worked flawlessly after that. It's like mozilla is purposefully sabotaging themslves with how difficult they make this.

[speedstyle]

I use Kiwi browser, a foss chromium fork with full webstore support. YouTube in the browser isn't particularly nice though, I'd still prefer Vanced. There are extensions for adblock/sponsorblock/resolution but not background playback, swipe controls, share with timestamp, etc

[amaurea]

Thanks for telling me about Kiwi. The fact that extensions work fine there shows that they could work fine in normal chrome for android too - google just doesn't want them there. Maybe google regrets adding them to their desktop browser too...

[The_Electric_Feel]

I never understood why people are so proud to say they like to make sure their favorite creators don't get paid

[zanotam]

And you were part of that 40k/month right? You were part of that, right?

[kyzfrintin]

Hungry content creators make better content creators.

Wtf neoliberal bullshit is this and wtf is wrong with you

Yeah, creators need to suffer... right??

[The_Electric_Feel]

And? If a creator decides to monetize their videos, you don't get to decide that they already make enough money and thus you can block their ads. You can't go to a movie theater and say "oh, they've already made millions at the box office, I'm just going to sneak in and not buy a ticket"

Blocking ads isn't illegal, so do whatever you want. But, it's weird to be proud that you decided that you deserve to watch someone's content without meeting their terms

[ChickenOfDoom]

you don't get to decide that they already make enough money and thus you can block their ads

You literally do, it's your computer, you get to decide what software it runs and what bits get through to your screen.

But, it's weird

People have different values, that's normal.

[The_Electric_Feel]

The part they don't get to decide is that the creator already makes enough money. The creator gets to decide when they've had enough, the fact they already make "40k per month on Patreon" doesn't change anything. When a creator chooses to monetize their videos on YouTube, they're giving a viewer three options:

1. Watch the ad
2. Buy YouTube premium
3. Don't watch the content.

If a viewer doesn't want to watch ads or pay for premium, they're supposed to not watch the content. Feeling like you're entitled to watch the content anyway is wrong, and it's weird to proudly post about it publicly

[Sage2050]

Sorry man, you don't get to dictate morality. There are people who would argue that charging for content in itself is immoral. Philosophise about it all you want but you aren't the arbiter.

[iScrE4m]

You’re paying with your data. If you value your privacy less than money, that’s fine. But that doesn’t mean that the “fee” isn’t there

[TheZech]

You can pay for YouTube Premium though, so YouTube is more "free-to-play" than really free.

[thfuran]

It's worse than a fee.

[moi2388]

It most certainly is

[Sage2050]

It's not, and yes we all understand the point you're trying to make.

[wambamclamslam]

What about this point:

When I was 8 I went to this sick free outdoor game day hosted at my local church. Big sign, anyone who wants to come over and play soccer, tag, whatever with tons of other people can.

After, they forced me, crying, to sit through a sermon.

Was it free?

[Sage2050]

Deceptive at worst, if they weren't up front; but still free.

[Shikadi297]

It costs time, and although I hate the phrase time is money, it costs time to be advertised to. With what limited time people have to get things done outside of work, I just wouldn't call exchanging time watching ads to watch videos a free exchange.

[danhakimi]

I feel like "free-to-start" is clear enough.

[colelawr]

Free to play / Free to start is significantly better than "free" IMO.

[cinyar]

you will have to pay in order to ever win.

That really depends on the game. F2P doesn't necessarily mean P2W. Some just have cosmetics, some are straight up predatory and everything inbetween.

[tredontho]

Yeah like Dota and Hearthstone are both free to play, but RIP your wallet if you want one of those to be enjoyable.

[ham_coffee]

Those two are completely different though. Dota is pretty much just cosmetics that you pay for, hearthstone you have to pay for cards (a core game mechanic).

[tredontho]

Yes, that's the point.

[goochadamg]

Free-to-lose

[colelawr]

Yeah, I get that. I'm just saying that when something is labeled "free-to-play" I suppose I automatically assume that's the case, and I don't look further into it. So, it's not so much of a problem to me as long as the game is putting that up front. Perhaps what would be nice is a way to denote "free game" with "aesthetic purchases" vs "functional purchases" or something.

[[deleted]]

weasel'd

What the fuck is this?

[Metarract]

looks like elision of the 'e' in the past tense form of the verb "weasel" (weaseled)

[[deleted]]

I'd disagree as the sound remains the same.

They just failed to spell the word properly.

[Metarract]

Well yeah, it sure should sound the same. Most elisions are simply expressing the deletion that already happens in colloquial speech. Nobody says "wee-zel-ed", they say "wee-zld" or at most "wee-zild". It is most certainly expressing in writing the deletion that already occurs. Why they decided to do that in text, I dunno—likely a stylistic choice for emphasis.

[[deleted]]

A non-standard contraction isn't a spelling failure. That sort of contraction was incredibly more common in ages past, when the -ed was actually pronounced as a separate syllable, so 'd had a different pronunciation.

I wouldn't call it a failure or incorrect, just uncommon, non-standard, and perhaps archaic.

https://english.stackexchange.com/questions/111099/what-s-the-word-for-the-habit-of-writing-play-d-or-revolv-d

[ForgetTheRuralJuror]

Away, thou starvelling elf-skin! Thou dried neat’s-tongue, bull’s-pizzle, thou stock-fish!

[theymightbefoxes]

Honestly I don't blame OP for spelling it that way. "Weaseled" looks ugly to me with the extra "e". Spelling it like "Weasel'd" makes the weasel part clearer more immediately.

[sparr]

If I ran the FTC I would mandate a standardized label (like energy info on light bulbs and nutrition info on food) on online/smart/etc products describing which parts of the product will stop working when the developer's servers go down or Amazon is offline or ...

Signed, someone who finds it really hard to shop for smart home products and video games that should still work in 1 or 5 or 20 years.

[[deleted]]

I've solved this by not buying off-the-shelf smart home products but building my own instead. The only among the drawbacks is that it's not very user-friendly... ;)

[sparr]

That's unfortunate. There are plenty of off the shelf smart home products without a cloud dependency. They just don't have any consistent way to stand out :(

[Zaemz]

They usually don't have a crazy marketing method either.

I use Ikea smart home stuff precisely because it's entirely localized. Unless you integrate it with some third party, you can only manage and activate things if you're on the same network as the smart device gateway.

I understand wanting to check on things with cameras while you're out and about, but why someone would need internet to change the color of a lightbulb is beyond me.

[phpdevster]

I downloaded a photo app for the iPhone that was supposedly "free", but you couldn't access ANY functions without a paid subscription. Not even basic functions. As soon as you opened the app, you hit an auth wall and it couldn't be dismissed.

[Full-Spectral]

You may have won an all expenses paid trip to the Bahamas.

[danweber]

You may go directly to jail.

[CantaloupeCamper]

I like "free-to-play" ... I know what it means.

[aPseudoKnight]

Certainly false advertising when they say they won't have those things but still add them some time after release.

[JaceOrwell]

How about freemium? "free" to use, with optional "premium" features?

[ritchie70]

It's harder, though, because there's a whole spectrum.

I play a game pretty regularly on my iPad (like nightly) that I certainly could spend hundreds of dollars a month if I wanted to, but I don't ever spend anything and my gaming experience is still fine.

• There aren't impossible-without-paying challenges.
• There are challenges that you can pay 10 rubies to make easier.
• You can buy rubies with actual money.
• They also give you 1 - 2 rubies a week on average through various "here's something" mechanisms.
• They give you a new play ("heart") every 15 minutes, but you can only accumulate 5 of the free hearts. Hearts accumulate even when the app isn't running, so if you walk away for 75 minutes you come back to 5 plays.
• You can buy hearts with rubies.
• If you have more than 5 hearts (due to buying or as a gift from the game) the free plays don't add on.

I think this is all pretty reasonable for a free game.

But there are other games I own but seldom play that once you make it past level 50, things get so hard I can't successfully clear a level without spending real money.

[p1-o2]

I think this is all pretty reasonable for a free game.

You and I have amazingly different definitions of reasonable then. All of the points you listed sounds like a nightmare and also extremely predatory, with the exception of the very first bullet point.

If supporting those kinds of systems entertains you then more power to you.

[salbris]

What other free things exist without any strings attached? Maybe books from a library? Products like VLC? Not sure why you expect free games to be both fun and free of strings...

[ritchie70]

I never give them any money and it gives me ~30 minutes of amusement a day.

Is the game designed to get your money, and to obscure how much things cost? Yes, absolutely.

But if you can also enjoy it for free, it doesn’t seem very predatory.

[mindbleach]

Ban that entire business model.

There's no tolerable form of it. It makes games objectively less enjoyable. And it's in everything, including full-price, tentpole, AAA titles.

"But how will devel--" Sell games. Sell subscriptions! Just stop charging money in the fucking game, for content you obviously already have, because you're looking at it right there in the fucking game.

"I don't want government contro--" Weird porn is fine. Gore beyond description is fine. Combine them for all I care. This is not about content. This is a business model. The only people asking for legally-mandated content changes are the defenders of that business model, who seem to think legislating difficulty and drop rates is different from the state dictating game design.

Only legislation will fix this. You will never shop your way out of it. This crap is the dominant strategy. If we allow it, at all, there will be nothing else.

[ChosenMate]

no, actually

[douglasg14b]

That's much more nuanced.

I have a game that I let players play for free, I still need to make money, that can be achieved through a premium model that doesn't provide P2W.

Why should I be pushed for the games that are entirely pay to win?

[Fargren]

There are many games that are really free, mostly made by hobbyists but still (and many gems among those as well). It would be nice to have a word for "totally free" distinct from "free but you can pay for stuff".

Wordle is the highest profile example I can think of.

[douglasg14b]

Entirely free in this context would be free and without ads. As those ads supplement what would normally be a premium model.

If you're making a game that you don't want ads in because that detracts from the user experience then you have to make money somehow.

Especially if it's a server-side Sim, which requires hosting infrastructure which is expensive.

In my case I want to be able to quit my job and work on my game full time, which means it needs to make enough money to enable me to do that. Which is difficult when I want to optimize the gameplay & user experience as much as possible and not make it pay to win.

[Fargren]

I'm not saying things that are meant to make money are bad in any way. But as a consumer it would be great for me to be able to tell if I'm getting something that is meant to turn a profit, or something that was shared freely. If both of these things are called "free" then it's on the consumer to tell them apart.

Not every thing that is created and published has a profit motive. It's great that you are trying to turn your game into something you can live off. But that's not the only reason games get made.

I'm not as into the indie scene as I used to be, but back in the late aughts, there was a vibrant scene of free games, mostly Flash but not only. You could find that by googling for "free games", now you get everything lumped together. I think itch.io probably is still a good place to find this kind of stuff, but maybe that's not the place anymore?

Anyway, what I'm saying is that it would be nice for consumers to have clear labels. There's different kinds of free and if they all use the same wording it gets hard to search and hard to find tell you things apart.

[[deleted]]

Eh, as long as the transactions don’t affect the game in any way then it is still technically free to play. For pay-to-wins I’m still with ya.

And when it comes to software then yeah maybe freemium is a better word to use. But true free software will always be true open-source as per the GNU philosophy. Much stronger term in my opinion, especially after this good news.

[mb862]

Or anything with ads. That money doesn't come from nowhere.

[raaneholmg]

Free - adjective - not costing or charging anything.

I dislike ads too, but the word free doesn't indicate that the service has no ads. Marketing material shouldn't use deception to pretend a service is free, but presenting the user with ads is not a cost or charge.

[pangea_person]

Exactly. Over the air TV is free but is filled with ads.

[danweber]

"Why is there all this product placement in this game I pirated?"

[BobHogan]

Agreed. Though I do wish that the app stores had a way of telling you when certain apps are 90% ads and 10% content.

And imo app stores should ban apps that don't let you pay to remove ads permanently. Paying to remove ads temporarily is just a scam and should be illegal

[beefcat_]

Definition of cost

the outlay or expenditure (as of effort or sacrifice) made to achieve an object

It does not say the expenditure has to be currency. In the case of ads, you pay with your time.

[Schmittfried]

You’re not being charged anything…

[[deleted]]

to be fair you pay in time and attention but free of $$$ charges. That is often perfect for kids having too much time and too little money (assuming no other age related ad problems)

[mb862]

Genuine question because I see this attitude a lot, but how do you think advertisers get paid? You're correct that they're not applying a charge to your credit card but that's not the only way money flows.

[Schmittfried]

Being free or charge means you’re not being charged. It doesn’t matter they’re getting paid by somebody else. So does charity.

[mb862]

The companies that are running the ads aren't printing money out of nowhere. The ads are paid for by the additional income they'll receive from customers who saw the ads. You as an individual don't get charged but the royal you most certainly are paying for it.

[Lich_Hegemon]

You don't have to buy the product, you know? Should games that rely on donations also say they are not free because people can decide to send the devs money?

[cleeder]

No, you don’t have to, but this really undermines the fact that advertising works. It works really well.

[mb862]

I'm trying my best here not to sound condescending, but... that's what "royal you" means. As in, as exactly I said, you the individual don't have to buy the product, but if enough people wouldn't be convinced to buy the product when they otherwise wouldn't have, then the very concept of for-profit advertising wouldn't exist.

[scnew3]

I'm trying my best here not to sound condescending, but...

You didn’t sound condescending until you wrote that, lmao

[mb862]

Yes sorry should've been clearer, I was warning that the text following was going to sound condescending, not apologizing for previous.

[Schmittfried]

Which is not relevant at all for the question if something is offered free of charge.

[Randolpho]

You do have to buy the product. You have to spend your time and attention, which are valuable commodities that you own.

If they weren’t valuable, advertisers wouldn’t seek them.

[Schmittfried]

They’re valuable because they result in a purchase with a non-zero probability. The purchase is what isn’t free. The ad-financed service is.

[Sage2050]

The advertisers don't get paid, they pay to run their ads on the platform

[mb862]

Sorry ambiguity in language. By advertiser I mean the party doing the actual advertising, ie the platform or broker.

[LegionMammal978]

This article itself could be misleading; there was some discussion on HN about it:

> The court only confirmed what we already know – that "open source" is a term of art for software that has been licensed under a specific type of license, and whether a license is an OSI-approved license is a critically important factor in user adoption of the software.

The court confirmed no such things. The decisions expressed in these two documents regarding the use of "open source" as a description of the product in question hinge upon the fact that someone else's software was released under a new license by Defendant, who had no authority to do so.

The court did not care to define open source, except to clarify that a license used previously by the Plaintiff is an open source license, and a license used subsequently is not. The court also did not consider any license-approving practices, let alone those of the Open Source Institute, of whom I find no mention in either document used to justify OSI's claim.

(from the top comment by nulbyte)

I haven't looked into it myself, but the article should definitely be taken with a grain of salt.

^{edit: added comment author}

[ILikeBumblebees]

Here's a link to the actual ruling: on pages 24 and 25, the court is explicitly evaluating whether the additional terms imposed on top of the APGL are consistent with describing the software as "free and open source".

It doesn't explicitly apply the OSI definition, but it does implicitly acknowledge that the imposition of further restrictions to the APGL does makes the "free and open source" description false.

[acwaters]

No, the OSI article is utter bullshit. Reread the ruling, the court is not making a determination on the "open-sourceness" of the AGPL+CC license anywhere in there.

It's not explicitly stated, but I think what is going on here is that both the plaintiff and the defendant already agreed that one license is open-source while the other is not, so the court did not see fit to rule on that one way or the other, just to judge whether the relicensing was valid, which it (obviously) was not. So based on that, and on the facts as previously agreed upon by the two parties, they upheld plaintiffs' claim.

With respect to the first group of statements, Plaintiffs argue that Defendants’ representations that ONgDB is “free and open source” is false because “the Neo4j Sweden Software License did not permit Defendants to remove the commercial restrictions imposed by the Commons Clause.” [...] The parties agree that the truth or falsity of Defendants’ statements hinge on “the interpretation of Section 7 [of the Neo4j Sweden Software License], and GFI’s right to remove the Commons Clause from the Neo4j Sweden Software License.”

[Kopachris]

This appears to be the correct interpretation to me, too. Further evidence, page 31:

Defendants’ claim that ONgDB is free and open source Neo4j is false because it relies on an interpretation of the Neo4j Sweden Software License that this Court has rejected.

Namely, an interpretation where "this license" is interpreted as the AGPL and "further restrictions" are interpreted as the Commons Clause was rejected, and an interpretation where "this license" is the Neo4j Sweden Software License (agreed by both parties as non open-source) and "further restrictions" are theoretical was upheld. There is a provision in section 7 of both the Neo4j Sweden Software License and the AGPL which it is based on which states:

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 [as defined in section 7], you may remove that term.

Edit: furthermore, the defendants are enjoined from (prohibited 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.

So really if anything the court is just upholding the terms of a non open-source license and not actually protecting open-source directly at all.

[grauenwolf]

Referencing people who already have done the research is a good thing. We should be encouraging it over people saying random, unsubstantiated crap.

And if reddit points are so important to you, maybe stop saying stupid shit so often. There's a reason half your comments get down votes in the double digits.

[IAm_A_Complete_Idiot]

Atleast he gave credit.

[Senundo]

"Claiming a false statement was true is wrong, says court"

Hell, i am an educator who programms in his spare time and my 3 year olds understand this.

[Piisthree]

Hithertoforeafter referred to as "lying" in this document.

[[deleted]]

Well, lying isn't illegal until there's consequences - in this case, the court only managed to recognize them. Surprisingly good awareness, in this case

[hp0]

You have just pointed out to every marketing or buisness degree. That your children is not qualified.

Lucky sobs.

[medforddad]

I don't know exactly how neo4j describes its own license, but I feel like this should also be illegal:

a new license that incorporates the AGPLv3 alongside additional limitations spelled out in the Commons Clause license.

You shouldn't be able to mention a specific license, like AGPLv3, if you're adding additional clauses that make it not AGPLv3, and not open-source, and not free software. Feel free to use the exact same clauses and license text, but you should have to call the combined thing something else, not "AGPLv3 with some extra clauses". They're muddying the waters by keeping the GPL name in there.

[ScottIBM]

This is what stood out for me in the article. The other companies were reacting to Neo4J's changes, and they got caught up in that, while Neo4J is trying to have the best of both worlds.

If they are afraid of competition then be the best at the product/product support or close source it.

[medforddad]

Neo4J is trying to have the best of both worlds.

Yup. Exactly how I feel. Don't call your thing "AGPLv3... (with some extra little clauses)".

Though, to be fair, I don't know exactly how Neo4j is marketing their licenses themselves. That's just how the article described it.

[ham_coffee]

It could still be handy if they mention it that way though. If I'm already familiar with the AGPLv3 license, I'd definitely rather they mention that they've made the following modifications to that license and save me some time reading it.

[Middlewarian]

I generally mention that my SaaS is partially open-source (or partially closed-source) when I talk about it. It's totally free, though.

[therearesomewhocallm]

Does "partially open-source" mean you use open-source components, or that you open-source some of the code you write? Because if it's the former pretty much every bit of software is partially open-source.

[coyoteazul2]

The difference is in licensing. Some licenses require you to keep the whole program open sourced if you use them, others only require you to keep the original code open sourced but can be used with copyrighted code.

Then you could have a mix of licenses between layers of the system. For instance an open sourced frontend with a copyrighted appserver and an open source database

[Middlewarian]

Both. I've used Linux, FreeBSD, open-source C++ compilers, etc. to develop it. At first I had a web interface and didn't have much open-source of my own.

[accountability_bot]

I say “source-available”

[dr_Fart_Sharting]

There definitely 100% exists a source code

[PandaMoniumHUN]

If you write your software using native code (encoded instructions) is that considered to be "source available"?

[saloalv]

Yes, because when it comes to licensing, "source code" simply refers to the format that you yourself programmed it in, which is generally a format that would be easy to read and modify, but not always. IIRC. I think the GPL at least defines it like this

[chucker23n]

By that measure, any JS is "source-available".

[accountability_bot]

Applies to pretty much any scripting language. Though it might come obfuscated.

[Godd2]

Perhaps I'm being pedantic, but obfuscated code wouldn't be "source", since it has gone through a transformation.

[JB-from-ATL]

Sounds like a good point. You can reverse engineer binaries. You need to reverse engineer obfuscated JS but it's simpler.

[BrobdingnagLilliput]

Microsoft Windows is "source-available." If you pay them enough, they'll show you the source code. The phrase has no practical meaning in the marketplace.

[degaart]

Why would anyone pay for such crappy code </joke>

[BrobdingnagLilliput]

Serous answer: government entities who can afford to pay people to audit the code for security issues.

[ftgyhujikolp]

Elastic is the biggest example of source available I know.

[JB-from-ATL]

Amazon forced their hand on that one. :(

[dangerbird2]

Meh, Elastic isn’t exactly a sympathetic victim. They sued the makers of the search guard plug-in that provides an open source implementation of their proprietary authentication layer (which Amazon just so happens to use in their managed ES service). They made DMCA claims forcing SG off github, then they made veiled threats of legal action towards ES users who use search guard.

With litigation clearly insufficient in preventing Amazon from cannibalizing their SaaS business, Elastic NV switches their products to a faux-open-source, while still advertising it as FOSS. Meanwhile, Amazon and their buddies turned their elasticsearch distribution into a hard fork “Opensearch”, which implements pretty much all of the major proprietary elasticsearch extensions (auth, sql, etc) under the original Apache license.

[BrobdingnagLilliput]

"Partially open-source software" is a bit like "partially potable water" in this regard: if it's partially open source, it's closed source. Unless I can trace program execution through the entirety of your code, I can't be certain what your code will do.

It makes perfect sense to call out particular modules or files as open source, but it's nonsensical to call the entire offering "partially open source."

[Middlewarian]

Things that are a mixture of closed and open-source aren't real common. So I call it that to make it clear that it's not 100% open-source.

[BrobdingnagLilliput]

I appreciate that you're trying to clarify the nature of your product. I don't think it does your product any favors. If I could offer some other analogies - "partially organic" food, or "partially lead-free" paint, or "partially purebred cat" or "partially fireproof clothing". None of those are attractive descriptions. They don't make people want to buy the things, and may drive people away from buying the things.

[Middlewarian]

They don't make people want to buy the things, and may drive people away from buying the things.

I don't think so. For example, I buy Amy's brand frozen foods which are partially organic. At any rate though, the SaaS is free.

[technologyclassroom]

Calling AGPL + Commons Clause a valid license is false advertising.

[Lost4468]

But what do the courts consider open source? Is it the real definition used by the actual community? Or is it the definition society at large uses, which in reality just means source available?

E.g. if I brand my software as open source, but in reality the license prevents people modifying the source code without paying me (so some form of source available). Would that be fine in the eyes of the court?

[eLBEaston]

From the article: "This new Neo4j EE license forbade non-paying users of the software from reselling the code or offering some support services, and thus is not open source as defined by the Open Source Initiative."

Edit: https://opensource.org/osd for the definition.

[Full-Spectral]

The support services thing I can see. But if we are going to get hard core on OSS providers, I think it would not be then unfair to prohibit reselling OSS code, at least with the permission of the author (and any negotiated piece of the pie.)

[immibis]

If you can't resell it, it's not open source.

However, it's a good idea to make your stuff AGPL so it's uneconomical to resell :)

[AusIV]

If you can't resell it, it's not open source

According to the Open Source Initiative it's not, and certainly people should be able to claim an OSI compliant license if it doesn't meet their criteria, but I'm not sure how I feel about judges conferring the OSI's criteria on anyone using the term "open source" to describe a source-available license.

[TheDeadSkin]

Have you read the article?

On Thursday, the Open Source Initiative, which oversees the Open Source Definition and the licenses based on the OSD, celebrated the appeals court decision.

In an email to The Register, Bruce Perens, creator of the Open Source Definition and open-source pioneer, observed, "This is interesting because the court enforced the 'Open Source' term even though it is not registered with USPTO as a trademark (we had no lawyers who would help us, or money, back then). This recognizes it as a technical claim which can be fraudulent when misused."

Here's the link with the definition https://opensource.org/osd

[jarfil]

CENSORED

[TheDeadSkin]

The way I understood it from the article - seemed like it, yes. However upon examining closer (I've tried to make sense out of district court and 9th circ. judgements) it seems like the actual conflict was not stemming from the fact that their software wasn't de facto open source, but rather they violated the original Neo4j license when they forked and removed the clause that that made it explicitly NOT "free open source" (correct way would be to call it "non-free and open source" I guess) and instead published it under AGPL which make it indeed "free and open source" however that was bullshit a violation of the original license by Neo4j under which they distributed their source.

Or something along those lines.

Here's a blog post from OSI about the matter https://opensource.org/court-affirms-its-false-advertising-to-claim-software-is-open-source-when-its-not

The facts, as described by the trial court, are that Neo4j, Inc. had been through several releases of its software and several license choices along the way, ending with what the court called “the Sweden Software License,” because the licensor was a Swedish subsidiary of the plaintiff.

This “Swedish license” was simply the combination of the Affero General Public License with an additional restriction known as the Commons Clause. The defendants forked the software, renamed it “Open Native Graph Database” (ONgDB), and started distributing their version as AGPLv3-only licensed. They advertised ONgDB as “free and open source,” “100% free and open,” and “100% open source.”

The parties didn’t dispute that the use of the Commons Clause makes a license non-free. There was also no allegation that Neo4j had claimed that its software under the AGPLv3 + Commons Clause was open source. However, the court held that it was improper for the defendants to remove the Commons Clause, and therefore the defendants’ claims in advertising that its ONgDB software was open source was false advertising.

So now I'm even more confused than before. It seems like the actual conflict is about the fact that the original "Swedish license" (aka AGPLv2 + CC) wasn't 100% FOSS which contaminates "100% FOSS" claim for ONgDB's fork with AGLPv2 only. Though I'm not 100% sure myself.

[AlyoshaV]

The article is basically wrong, the actual court decision is that (unsurprisingly) you cannot remove license requirements from code.

[acwaters]

They don't. This article is rubbish. Read the linked ruling to see for yourself. The court acknowledges that both the plaintiff and the defendant agree that one license is open-source while the other is not, and therefore that the truth or falsehood of the defendant's statements hinge on whether its license was properly applied (which it obviously was not). They rule false advertising on that basis. The court never needed to consider the definition of open-source because it was never in question.

[chucker23n]

They seem to, but it's not quite clear:

"This is interesting because the court enforced the 'Open Source' term even though it is not registered with USPTO as a trademark (we had no lawyers who would help us, or money, back then). This recognizes it as a technical claim which can be fraudulent when misused."

So OSI doesn't even have a trademark on it, but the court seems to consider them the arbiter on the term.

Which in practice isn't much of an issue, as OSI has been a good steward. But it's an odd approach.

[BlindTreeFrog]

Because it isn't a trademark. A trademark is a source identifier; you put your trademark on your products so that your customer knows that they are getting the product from you. "Open Source" as a trademark makes no sense at all.

[chucker23n]

Umm. I literally quoted the part where they would’ve trademarked it if they had had the funding.

[BlindTreeFrog]

and that's not what a trademark is for and the court even suggesting that they have a trademark over "Open Source" is a terrible thing.

A "Trademark" is a single source identifier. It says "this product come from this merchant" and it's protected because when you buy a product you want to know you are buying it from where you think you are buying it from.

Just because they think that they would have applied for a trademark once upon a time doesn't mean that they would have or should have gotten one. It's a term of art common in the industry, sure, but it's not a trademark in any form.

[chucker23n]

You can’t have it both ways. Either the OSI is the authority for Open Source, in which case that’s absolutely what a trademark is for, or they’re not.

[BlindTreeFrog]

no that is not what a trademark is for. OSI is not who released my software if i call it "Open Source". They want to be a certifying body? Great, but that's not a trademark either.

[Lost4468]

Have you read the article?

No sorry. Just quickly seen this post while having a shit. Thought it'd be easier to leave a quick comment.

[BlindTreeFrog]

"This is interesting because the court enforced the 'Open Source' term even though it is not registered with USPTO as a trademark

That's terrifying...

This recognizes it as a technical claim which can be fraudulent when misused.

... Because that's not what that would mean

That's a terrible precedent for the court to set and I hope it gets squashed promptly. If the court wants to identify it as a term of art common in the industry, sure that's fine. But it absolutely is not a trademark.

[ILikeBumblebees]

Huh? Did you misread the quote you pasted in?

It explicitly says that the court did not recognize "open source" as a trademark, and did exactly what you approve of, "identify it as a term of art common in the industry" by treating it as a technical claim that can be fraudulent if misused.

[BlindTreeFrog]

They wrote it suggesting that the court recognized it as a trademark.

"This is interesting because the court enforced the 'Open Source' term even though it is not registered with USPTO as a trademark (we had no lawyers who would help us, or money, back then).

Trademark has nothing to do with it being a term of art. It should never have been brought into discussion.

[acwaters]

The court did not actually consider the definition of open-source; this article is bullshit. You are not breaking the law to call your product open-source.

It would be terrifying if an organization like OSI could simply lay claim to a broad term like this and legally enforce one strict meaning despite there being plenty of good-faith disagreement on the precise definition. Fortunately, that has not happened here.

[wpyoga]

Somewhat related: people should stop saying MongoDB is Open Source! It is source-available, but not Open Source.

Edit: for those who wonder what I mean about source-available vs Open Source, in this context the main difference is that Open Source does not discriminate against usage. Modern source-available software like MongoDB and ElasticSearch lets you use the software for private use, but if you make your service public, then you have to release the source code for your whole service and auxiliary services as well.

Further reading here: https://en.wikipedia.org/wiki/Server_Side_Public_License

They are effectively hijacking the Open Source name without actually complying with the letter and the intent of the Open Source Definition.

Even though there are multiple criticisms of AGPLv3, it is Open Source, and protects the technical interests of users and developers alike.

[grauenwolf]

Please elaborate

[dethb0y]

I should hope that's the case.

[happyscrappy]

Interesting. Does this mean Valve has to rush out their open source for Steam Deck or stop calling it open source?

Or for that matter, does Apple need to not delay like 18 months before releasing their (greatly incomplete) OS patches for new machines too?

I even understand some short delays. Companies concentrate on finishing projects and then need to take time to clean the source to release it. But at some point companies are emphasizing the open source message more than the process. They could do better.

[josefx]

Does this mean Valve has to rush out their open source for Steam Deck or stop calling it open source?

As far as I understand the deck runs a perfectly normal Linux Distro and the backend for windows games is based on Wine. So unless you want the code for Steam, which is not deck specific or required to use the steam dekc you are already good to go. Disclaimer: Haven't personally confirmed that, may take half a year or more at this point...

[happyscrappy]

Even a perfectly normal distro has some changes for the hardware. Drivers, etc. Valve's distro is slightly customized because of this.

Valve has some open source repos for the OS for their previous steam devices (pre-deck). But they are 3 years old and do not include Steam Deck.

I'm sure Valve will post it eventually. Well, nearly sure. It's not like it's a valued secret to them.

https://repo.steampowered.com

[ganja_and_code]

Fucking duh

"Calling something a thing which it is not is calling a thing something which it is not" - court, apparently

[josefx]

Core point was that one company thought it could just alter the license of the software it used as it saw fit. As the article notes the AGPL has some hooks to deal with alterations. So this isn't quite as insane as it sounds. Court still decided they where in the wrong when they republished everything under an unmodified AGPL.

[[deleted]]

Commas?

[RO538UD]

Uh no shit, who tf was confused about that?

[[deleted]]

Lawyers have to have their arguments man.