Further even, the OSI and FSF lost in that the courts upheld that you can add the Commons Clause to the AGPLv3 despite the AGPL having a clause saying further restrictions can be ignored. (It gets a little complicated, I believe the reasoning was that Neo4j could only add the commons clause as the original copyright holder/licensor, no sub-licensor could add it)
I really hope it works that way. Of course the original licensor can distribute their software under any terms they like; even if the license looks similar to the AGPL3 license for the most part, the Commons Clause turns it into a totally different license.
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.
It's legit to combine the text of an open source license and the text of the Commons Clause. However, if you try to do that with e.g. the Apache License Version 2.0, the Apache Software Foundation won't let you abuse their registered trademark and call it "Apache 2.0 + Commons Clause", because the result is incompatible with the spirit of the Apache License 2.0.
I believe that similar reasoning would apply to the AGPL.
I would like to see that court case. It seem to me it would be fair game to refer to your software as Apache license 2 + XYZ Clause as long as you make clear that XYZ Clause is not part of the Apache 2 license.
It’s generally not against trademark law to refer to a combination of things. I can say that I use Microsoft Windows + Adobe Photoshop, as long as I don’t claim that Photoshop is part of Microsoft Windows, no trademark confusion will result.
What might get you in trouble is to modify the Apache license text itself to add an additional clause in the middle somewhere, or to call that modified version it “Apache 2 licensed” without any qualification.
All of the high-profile orgs I am aware of who once called their licensing "Apache + Commons Clause" have since changed the names of their licenses to something else.
The argument that "Apache + Commons Clause" is a "combination" is straightforward to counter. The "Commons Clause" is not additive — it fundamentally changes the license, making it more restrictive and taking away potential uses. Consumers could not count on being able to do the things with software under such a license that they would ordinarily expect to be able to do with "Apache" licensed software, which damages the "Apache" brand.
In any case, it's not clear that it's worthwhile to go up against a sympathetic defendant like the ASF and make such an argument for limited benefit.
What did they change the license to? If you have some examples, I would be curious to see how they handled that.
I was under the impression that it was Commons Clause that people started avoiding in favor of other "cloud protection licenses", both to avoid possible confusion and because Commons Clause got visceral reactions from some members of FLOSS community. Unfortunately, other similar licenses are less recognizable. The whole point of generic licenses is that they should be well known, widely used, and the legal departments already know their tradeoffs. If each company writes their own license then this makes it difficult for other companies to use their software, because legal departments need to check every license separately.
Is there a generic license that is the same (in spirit) as Apache + Commons Clause?
That makes a lot of sense. At some point there is two parts to the license that contradict each other, and no particular reason why AGPL would override Commons Clause or the other way around. The court went with the obvious intent of the licensor which is good.
> (It gets a little complicated, I believe the reasoning was that Neo4j could only add the commons clause as the original copyright holder/licensor, no sub-licensor could add it)
This has been always the point. All GPL licenses have a similar clause.
Does Neo4j require contributors to sign a CLA? Because, if not, then as I understand it (IANAL) Neo4j isn't the original copyright holder for all of the code.
