An Erroneous Preliminary Injunction Granted in Neo4j v. PureThink

[ A version of this article was also posted on Software Freedom Conservancy's blog. ]

Bad Early Court Decision for AGPLv3 Has Not Yet Been Appealed

We at Software Freedom Conservancy proudly and vigilantly watch out for your rights under copyleft licenses such as the Affero GPLv3. Toward this goal, we have studied the Neo4j, Inc. v. PureThink, LLC ongoing case in the Northern District of California , and the preliminary injunction appeal decision in the Ninth Circuit Court this month. The case is complicated, and we've seen much understandable confusion in the public discourse about the status of the case and the impact of the Ninth Circuit's decision to continue the trial court's preliminary injunction while the case continues. While it's true that part of the summary judgment decision in the lower court bodes badly for an important provision in AGPLv3§7¶4, the good news is that the case is not over, nor was the appeal (decided this month) even an actual appeal of the decision itself! This lawsuit is far from completion.

A Brief Summary of the Case So Far

The primary case in question is a dispute between Neo4j, a proprietary relicensing company, against a very small company called PureThink, run by an individual named John Mark Suhy. Studying the docket of the case, and a relevant related case, and other available public materials, we've come to understand some basic facts and events. To paraphrase LeVar Burton, we encourage all our readers to not take our word (or anyone else's) for it, but instead take the time to read the dockets and come to your own conclusions.

After canceling their formal, contractual partnership with Suhy, Neo4j alleged multiple claims in court against Suhy and his companies. Most of these claims centered around trademark rights regarding “Neo4j” and related marks. However, the claims central to our concern relate to a dispute between Suhy and Neo4j regarding Suhy's clarification in downstream licensing of the Enterprise version that Neo4j distributed.

Specifically, Neo4j attempted to license the codebase under something they (later, in their Court filings) dubbed the “Neo4j Sweden Software License” — which consists of a LICENSE.txt file containing the entire text of the Affero General Public License, version 3 (“AGPLv3”) (a license that I helped write), and the so-called “Commons Clause” — a toxic proprietary license. Neo4j admits that this license mash-up (if legitimate, which we at Software Freedom Conservancy and Suhy both dispute), is not an “open source license”.

There are many complex issues of trademark and breach of other contracts in this case; we agree that there are lots of interesting issues there. However, we focus on the matter of most interest to us and many FOSS activists: Suhy's permissions to remove of the “Commons Clause”. Neo4j accuses Suhy of improperly removing the “Commons Clause” from the codebase (and subsequently redistributing the software under pure AGPLv3) in paragraph 77 of their third amended complaint. (Note that Suhy denied these allegations in court — asserting that his removal of the “Commons Clause” was legitimate and permitted.

Neo4j filed for summary judgment on all the issues, and throughout their summary judgment motion, Neo4j argued that the removal of the “Commons Clause” from the license information in the repository (and/or Suhy's suggestions to others that removal of the “Commons Clause” was legitimate) cons