[License-discuss] Does the LinShare "attribution" notice violate OSD?

[Bradley M. Kuhn]

McCoy Smith wrote at 11:41 (PDT) on Monday:
>> Seems like it might violate the definition of appropriate legal notice in
>> GPLv3.

(It's AGPLv3 in this situations that we're discussing, but the sections in
question McCoy is referring to are the same in both AGPLv3 and GPLv3.)

Linagora's LinShare “additional terms” are, IMO, “additional restrictions”.
However, Linagora seeks to require preservation of notices that don't fit
the AGPLv3 definition of “Appropriate Legal Notices” (as McCoy notes).
LinShare's additional restriction is not upheld by AGPLv3§5(b/d).  Linagora
clearly overreads AGPLv3§7(b/c) when adding this restriction, and it's thus
a “further restriction” under AGPLv3§10.  In short, Linagora is wrong.

McCoy and I often disagree about many issues of copyleft; this is one of
those cases of “when two people on opposite political sides agree, it
probably means the conclusion is correct”.  ☺

Stefano Zacchiroli wrote at 13:21 (PDT) on Monday:
>>>>>> ... hence, one should be able to just remove these de facto "further
>>>>>> restrictions", as per [AGPLv3§7¶4]:

Indeed!  Fortunately, AGPLv3 provides another term (exercisable by all
downstream) to remedy Linagora's abuse.  Specifically, as Zack points out,
AGPLv3§7¶4 allows downstream to strip away these “further restrictions”.

Bruce Perens via License-discuss wrote at 12:40 (PDT) on Monday:
>>> We've had long discussions about badgeware in the past. Just search for
>>> that word in the list archives. Not an OSD-compliant license.

Pamela Chestek wrote at 12:59 (PDT) on Monday:
>>>>>>> But this is an easy one for me to say does not comply with the
>>>>>>> common understanding of the OSD.

So, while Bruce and Pam are correct that the additional restriction(s) *if
valid* would lead to OSD-non-compliance, the AGPLv3 itself allows for
removal of the term and downstream return to standard license *without* the
problematic “further restrictions”.  Those downstream who do such removal
have *not* violated the AGPLv3 because of the explicit permission given by
AGPLv3§7¶4.  So, to stay “Linagora's LinShare license doesn't comply with
OSD” is misleading.  It *does* comply with OSD (and AGPLv3) because Lingora
actually gives permission to remove all the problematic restrictions that
concern all of us and would (theoretically, but for AGPLv3§7¶4) cause
OSD-non-compliance.  IOW, *because* AGPLv3 is OSD-compliant *means* that any
software whose base license is AGPLv3 is de-facto OSD-compliant.

I realize that's counter-intuitive because what Lingora says is analogous
to: “you must stand on your head when you modify and/or redistribute this
software” but then also says: “Regardless of what we say elsewhere, you do
are not required to stand on your head when you modify and/or redistribute
this software”.  Being required to stand on your head when redistributing
software is (presumably) not OSD-compliant, but it's not (to my knowledge)
OSD-non-compliant to override your previously stated OSD-non-compliant
requirement in the same document.  (If it were, I know a *major*, well-known
Linux-based product from a Fortune 100 that'd both violate GPL and be
OSD-non-compliant too. 😆)

There was discussion during GPLv3 drafting on this matter. A/GPLv3§7¶4 was,
considered absolutely essential precisely because there was real, expressed
fear about the exact kinds of abuses that Linagora (and Neo4j before them)
might engage in through overreads/overreaches of the rest AGPLv3§7.  We had
already seen such abused of the GPLv2-group of license and there was no
remedy because there was no equivalent to GPLv3§7¶4.

(For completeness, I quoted the relevant parts of AGPLv3 at the end of this
email.)

If there is anyone out there that would like assistance making a fork of
Lingora's LinShare that *removes* these additional restrictions, as
AGPLv3§7¶4 permits, please get in touch with me off-list.  I'd be glad to
assist.  Due to the FUD that companies like Linagora, Neo4j, (and their
allies — de-facto or otherwise) spread about these matters, downstream lives
in fear of these clauses.  I've been working for years on methods to take a
stand on these matters, and would be glad to assist anyone who wants to do
the same with any companies that plays these mind games with their users.

* * *

Regarding the perceived similarities of Linagora to PureThink v. Neo4j:

Simon wrote on Monday at 1:24 PM:
> A recent court case in the US suggests that if Linaro owns all the
> copyrights it would be unwise to rely on that without further precedent or
> reliable defence.

Simon Phipps, when asked for details, followed up at 14:50 (PDT) on Monday:
> The Neo4J case, not one involving Linagora (yet) - they are just the
> company behind Linshare.

McCoy Smith, who'd asked for the details, replied at 15:32 (PDT) on Monday:
>> Whew, I thought I missed an important decision. 😊

Yup, you didn't, McCoy — as there has been no definitive decision regarding
AGPLv3§7¶4.

I disagree with both Simon (in his personal capacity) and his employer, the
OSI, on their analysis of (and conclusions about) the ongoing legal case of
Neo4j v. PureThink.  In particular, IMO, the OSI erred by exuberantly
celebrating the preliminary injunction (PI) decision in the case, as that PI
decision hinted at a dangerous outcome for copyleft and software freedom —
even if, as the OSI claims, the PI [0] outcome might be a success for the
OSI in its advocacy efforts.  (The OSI focused on one beautiful tree and
ignores that there is a forest fire that might burn out of control nearby.)

Most importantly, Simon's text above makes it sound like PureThink v. Neo4j
is over, which it is not.  There is *no* court precedent set yet —
particularly on the right to exercise AGPLv3§7¶2 (which, BTW, remains only a
side issue in PureThink v. Neo4j).  The Court did not really look at the
AGPLv3§7¶2 fully because the pleadings were more focused on unrelated
issues.  I've written extensively about the details at:
https://sfconservancy.org/blog/2022/mar/30/neo4j-v-purethink-open-source-affero-gpl/

The Register also did a two-part series of articles on PureThink v. Neo4j:
    https://www.theregister.com/2022/03/17/court_open_source/
    https://www.theregister.com/2022/04/02/court_neo4j_ruling/

IANAL and TINLA.

 * * *

Portions of AGPLv3 referenced above:
AGPLv3§0, "Appropriate Legal Notices" definition:
>>>> An interactive user interface displays "Appropriate Legal Notices" to
>>>> the extent that it includes a convenient and prominently visible
>>>> feature that (1) displays an appropriate copyright notice, and (2)
>>>> tells the user that there is no warranty for the work (except to the
>>>> extent that warranties are provided), that licensees may convey the
>>>> work under this License, and how to view a copy of this License.  If
>>>> the interface presents a list of user commands or options, such as a
>>>> menu, a prominent item in the list meets this criterion.
… AGPLv3§0¶1 (relevant portions)
>>>>  5. Conveying Modified Source Versions.
>>>> You may convey a work based on the Program, or the modifications to
>>>> produce it from the Program, in the form of source code under the
>>>> terms of section 4, provided that you also meet all of these conditions:
…
>>>>  b) The work must carry prominent notices stating that it is released
>>>>  under this License and any conditions added under section 7.  This
>>>>  requirement modifies the requirement in section 4 to "keep intact all
>>>>  notices".

>>>>  d) If the work has interactive user interfaces, each must display
>>>>  Appropriate Legal Notices; however, if the Program has interactive
>>>>  interfaces that do not display Appropriate Legal Notices, your work
>>>>  need not make them do so.
… AGPLv3§7¶1 (relevant portions)
>>>>   7. Additional Terms.
>>>>  "Additional permissions" are terms that supplement the terms of this
>>>>  License by making exceptions from one or more of its conditions.
>>>>  Additional permissions that are applicable to the entire Program shall
>>>>  be treated as though they were included in this License, to the extent
>>>>  that they are valid under applicable law.
… AGPLv3§7¶3  (relevant portions)
>>>> Notwithstanding any other provision of this License, for material you
>>>> add to a covered work, you may (if authorized by the copyright holders
>>>> of that material) supplement the terms of this License with terms:
… 
>>>> b) Requiring preservation of specified reasonable legal notices or
>>>> author attributions in that material or in the Appropriate Legal
>>>> Notices displayed by works containing it; or
… 
>>>> c) Prohibiting misrepresentation of the origin of that material, or
>>>> requiring that modified versions of such material be marked in
>>>> reasonable ways as different from the original version; or
… AGPLv3§7¶4  (relevant portions)
>>>> All other non-permissive additional terms are considered "further
>>>> restrictions" within the meaning of section 10.  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.
… AGPLv3§7¶10  (relevant portions)
>>>> You may not impose any further restrictions on the exercise of the
>>>> rights granted or affirmed under this License.

Portions of Lingora's so-called “Additional Terms”, quoting only the ones
that are clearly actually “further restrictions” (as found at
https://github.com/linagora/linshare/blob/master/COPYING.md )

>>>>> Additional Terms applicable for LinShare software The following
>>>>> additional terms are applicable to the use, modification and
>>>>> distribution of LinShare software:
>>>>> Notices and Attribution:
… 
>>>>> In accordance with Section 7 and subsection (b) of the GNU Affero
>>>>> General Public License version 3, these Appropriate Legal Notices
>>>>> consist in the interface display of the "LinShare™" trademark/logo, the
>>>>> interface display of the "Libre & Free" mention, and the interface
>>>>> display of the "You are using the Free and Open Source version of
>>>>> LinShare™, powered by Linagora © 2009--2020. Contribute to Linshare R&D
>>>>> by subscribing to an Enterprise offer!". The latter notice must also be
>>>>> displayed in any asynchronous message sent with the Program, for
>>>>> example e-mails which will contain this notice in their
>>>>> footer. Retaining these Appropriate Legal Notices in any and all Free
>>>>> and Open Source versions of LinShare and LinShare software Programs is
>>>>> mandatory notwhistanding any other terms and conditions.

I can imagine a redraft of this item above that might qualify as
“Appropriate Legal Notice”, but as written above, it is IMO a “further
restriction”.

>>>>> If the original or modified LinShare software Program does not include
>>>>> any interface, or if the interface display of the Appropriate Legal
>>>>> Notices is not feasible for technical reasons, execution of the Program
>>>>> should display whenever possible the notices "LinShare (tm)", "Libre &
>>>>> Free", as well as the "You are using the Free and Open Source of
>>>>> LinShare (tm), powered by Linagora (c) 2009--2020. Contribute to
>>>>> Linshare R&D by subscribing to an Enterprise offer!". The latter notice
>>>>> should also be present in any aynchronous message sent with the Program
>>>>> (such as in the footer of e-mails).

I can't even imagine how this one could even be modified to make it a
qualifying “Additional Term”.  It just looks like a “further restriction” to
me …

>>>>> Regardless of the notice language, the word "LinShare" must be a
>>>>> clickable hypertext link that leads directly to the Internet URL
>>>>> http://www.linshare.org/, and the word "Linagora" must be a clickable
>>>>> hypertext link that lead directly to the Internet URL
>>>>> http://www.linagora.com/.

Again … I can't even imagine how this one could even be modified to make it
a qualifying “Additional Term”.  It just looks like a “further restriction”
to me …

>>>>> Using these trademarks without the (TM) trademark notice symbol,
>>>>> removing these trademarks from the software, modifying these
>>>>> trademarks in any manner except proportional scaling (under the
>>>>> proviso that such scaling keeps the trademark clearly legible), or
>>>>> using these trademarks to promote any products or services
>>>>> commercially, or on product packaging, websites, books, documentation
>>>>> or any other publication without a written, signed agreement with
>>>>> Linagora is strictly prohibited, and constitutes an infringement of
>>>>> Linagora intellectual property rights over these trademarks.

These are the ones that concerned Simon the most (and are the most like
traditional “badgeware”).  I can imagine these being redrafted to be
permissible under AGPLv3§7, but the “removing these trademarks from the
software” part is clearly a “further restriction”.  AGPLv3§7(e) speaks to
*forbidding* use of trademarks, not *requiring* their inclusion — this is
another case of Linagora misreading AGPLv3§7.  The drafting history on this
issue is relevant, since during the GPLv3 drafting process, badgeware
companies lobbied (unsuccessfully) to add a term that would embody badgeware
into the GPLv3-group of licenses.


[0] For those who haven't been involved in USA litigation before, PI's are an
    early part of a Court case where one party can prevent the other party
    from doing certain things while the case continues.  A decision on a PI
    merely means the Court (or even an appeals Court) believes that certain
    behaviors should not continue while the case is ongoing (because, if the
    side asking for the PI wins, that side might suffer irreparable harm
    while they wait for the case to finish).  Thus, while a PI that makes a
    mention to AGPLv3§7¶4 and seems to indicate that AGPLv3§7¶4 wasn't
    enough to prevent the injunction, it doesn't mean it's a decision about
    whether or not AGPLv3§7¶4 works properly in a situation that is less
    muddled than the PureThink v. Neo4j case.  (i.e., Neo4j's (yet unproven)
    allegations against PureThink go beyond *merely* that PureThink had
    removed the additional restriction pursuant to AGPLv3§7¶4).


 -- bkuhn