https://sfconservancy.org/news/2025/jan/13/neo4j-amicus/

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Home / News

SFC Files Amicus Brief in Support of Users' Rights under AGPLv3SS7

SFC Defends Copyleft Licensing in Important Federal Circuit Appeal

January 13, 2025

SFC filed an amicus brief in the ongoing case of Neo4j, Inc. v.
PureThink, LLC, which is now appealed to the United States Court of
Appeals for the Ninth Circuit. The appeal focuses on a downstream
licensee's right under the Affero General Public License, version 3
(and similar rights under GPLv3 and LGPLv3) to remove "Further
Restrictions" -- even when such restrictions are put in place by
original licensors. SFC was proud to stand up for this important
right under copyleft, and appears to be the only organization that
filed an amicus brief in this case.

While the case in the lower court covered many issues, SFC's amicus
brief focuses on one key important issue: the right for licensees --
be it for commercial or non-commercial reasons -- to remove further
restrictions placed by Neo4j -- pursuant to this unqualified right
enshrined in AGPLv3SS7P4:

    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.

Neo4j had appended the non-free Commons Clause at the end of the the
full, unmodified text of the AGPLv3 (including its original preamble)
to create what Neo4j dubbed the "Neo4j Sweden Software License".
There was no dispute that the so-called "Commons Clause" was a
"further restriction" that could be removed under AGPLv3 SS7P4. But
Neo4j had argued (and the lower court agreed) that this right was in
conflict with AGPLv3 SS10P3 (which, in part, prohibits licensees from
adding "further restrictions"). Neo4j further argued (and the lower
court agreed) that since SS10P3 did not mention licensors explicitly,
then not only must licensors have the right to add "further
restrictions" but this implicit right trumped the licensees' explicit
right to remove such restrictions under SS7P4.

SFC's amicus brief in this case argues that the lower court erred
when it agreed with Neo4j's interpretation of AGPLv3SSSS7/10. Neo4j
included the entire text of the AGPLv3, including AGPLv3 SS7 and the
AGPLv3 preamble, and licensees legitimately were within their rights
to follow what the terms said (as informed by the preamble) and
remove the appended proprietarizing modifier. Our brief provided
detailed legal analysis that we hope will convince the Court to
uphold the principles of software freedom and users' rights under
copyleft in this situation.

Amicus briefs take a great deal of effort, and unfortunately the
appellate court is not obligated to give them any weight.
Nevertheless, we do hope the Court and other organizations will hear
our voice on this important matter. The language of AGPLv3SS7P4 and
SS10P3 is found in other GPLs. The lower court's interpretation, if
upheld on appeal, could radically alter the community's understanding
of whether and how "further restrictions" (and not just the so-called
"Commons Clause") may be added and removed.

SFC thanks outside counsel Aaron Williamson who helped with this
brief. You can review SFC's amicus brief in full here.

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