SFC Files Amicus Brief in Support of Users' Rights under AGPLv3§7

[Software Freedom Conservancy]

   SFC Files Amicus Brief in Support of Users' Rights under AGPLv3§7
  SFC Defends Copyleft Licensing in Important Federal Circuit Appeal

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

Social media:
  https://social.sfconservancy.org/notice/Aq4joknQzFHA6OgfGC
  https://x.com/conservancy/status/1879172711462903819

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 AGPLv3§7¶4: 

	     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 [0] 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 §7¶4. But Neo4j had
argued (and the lower court agreed) that this right was in conflict with
AGPLv3 §10¶3 (which, in part, prohibits licensees from adding “further
restrictions”). Neo4j further argued (and the lower court agreed) that
since §10¶3 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 §7¶4.

SFC's amicus brief in this case [1] argues that the lower court erred
when it agreed with Neo4j's interpretation of AGPLv3§§7/10. Neo4j
included the entire text of the AGPLv3, including AGPLv3 §7 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 AGPLv3§7¶4 and §10¶3 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. [2]

[0] https://sfconservancy.org/blog/2018/aug/22/commons-clause/
[1] https://storage.courtlistener.com/recap/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee/gov.uscourts.ca9.0aa0c11f-c743-41cd-a821-d077e41e76ee.34.1_1.pdf
[2] https://sfconservancy.org/static/docs/sfc-neo4j-amicus-brief.pdf