
Updating Our Open Source Patent Grant - spicyj
https://code.facebook.com/posts/1639473982937255/updating-our-open-source-patent-grant/
======
zaroth
To those relieved that Facebook open source discussions will no longer be
dominated by PATENTS file discussion, I just would point out, is was exactly
the persistent complaints which motivated Facebook to make this change. So I
would say _thank you_ to everyone who complained about the language in the
original grant. It shows exactly what is possible when a determined group
persists in vocalizing their grievances.

Today it's Facebook PATENTS, tomorrow maybe it's nation-wide automatic license
plate tracking. One thing is for sure, staying silent never changed anything.

It's a ridiculous comparison, I know, but never underestimate the ability of a
small group of determined rabble-rousers to make a difference. A small
incident with some tea in a large body of water comes to mind.

~~~
spcoll
_> Today it's Facebook PATENTS, tomorrow maybe it's nation-wide automatic
license plate tracking. One thing is for sure, staying silent never changed
anything._

On political issues, the three-letter-agency-mandated bots/shills in the
comments of mainstream news outlets and on mainstream social media sites
(twitter/reddit) will always be louder and more numerous than us.

It's only on issues that the powerful don't really care about that democratic
change is possible.

EDIT: To the downvoters: may I know why you are downvoting me? Maybe you
believe I'm a tinfoil hatter? Maybe you think governments, who have been
controlling media "narratives" for as long as media has been a thing, don't
care about social media even though it is dead easy to manipulate? Maybe you
don't know that this has been heavily documented for a while, and is really
happening on a large scale, all the time?

~~~
yulaow
Maybe are the governments those who are downvoting you.

~~~
aptwebapps
Really, I don't know why the GP is getting all bothered, it's just a bunch of
bots, obviously.

------
dynamic
[Lawyer, but not a patent lawyer]

I was perplexed by the uproar on HN about the original patent language (in the
thread announcing the release of React Native [1]). This kind of open-source
patent license--which, in effect, allows Facebook to use its patents against
users of React defensively but not offensively--is exactly what we need more
of in the open source world. Why did people think that their defensive patent
license was somehow worse than the industry standard (the MIT or BSD copyright
license with no patent license, which made patent rights murky at best)?

But this new language eliminates the major limitation on the original
language, which was that the license would be terminated if you attempted to
invalidate one of Facebook's patents or defensively argued that it was invalid
or unenforceable (or even, according to a strict though implausible reading of
the language, if you publicly stated that the patent was invalid).

Glad to see Facebook paying attention, even if the original complaint was
overblown.

[1]
[https://news.ycombinator.com/item?id=9271246](https://news.ycombinator.com/item?id=9271246)

~~~
ploxiln
Also try to understand that a lot of software engineers, like myself, would
rather that the source code license not implicate or involve patents at all.

Let the lawyers argue about the patents; I don't want to accidentally hobble
the ones on my side or arm the ones on the other side, I don't want to
accidentally harm other open-source contributors, I'd rather not be involved
at all.

(In the BSD vs GPL debate I'm pro-GPL, but not GPLv3, because it involves the
patents...)

~~~
dynamic
I'm a developer as well. And I am politically opposed to software patents and
would prefer that software not be patentable.

But I'm confused by your statement that you want the license not to mention
patents because you want to leave patent issues to the lawyers. The license
isn't software code, it's legal code--it's what the lawyers are arguing about!

If the license doesn't mention patents (and doesn't imply a particular grant
of patent rights, which like I said is an open issue), then you haven't chosen
"nothing." You've chosen the default: the patent holder retains all rights.

~~~
ploxiln
That's right, the default. (but also, see teraflop's comment about ambiguous
implied patent license)

It seems that any variation either hurts my defense or comes off as aggressive
(which is what happened to facebook).

In a hypothetical situation where the patent language matters, it's total war.
Multiple concurrent lawsuits in opposite directions, ITC injunction requests,
etc. Maximum pain to make the opponent capitulate. None of these patents are
really valid anyway, it's either math or implementation detail. There's no
reason or logic here.

Better to make no statement, leave the default unsaid, and stick your head in
the sand, it may keep you under the radar of involvement.

------
DannyBee
I'm very glad Facebook was willing to take a step back here, evaluate people's
concerns, and update the grant to address them. Most companies, when placed in
the same position, would simply double down and tell people to go pound sand.

The fact that they didn't, and in fact, actually talked with folks and
addressed this head on, speaks volumes about them as a company.

~~~
throwaway41597
edit:

They actually kept a large part of the previous license. The new license will
terminate if you initiate: "any Patent Assertion [...] (iii) against any party
relating to the Software".

So if you sue any React user for infringing any patent, even unrelated to
React usage, your license for React will terminate. On the other hand, if
Facebook uses your Apache 2.0 software, their license to your patents
terminates only if they sue people for using your software. Isn't that
asymmetric?

/end edit

Isn't there a loop-hole though? With the new license, if a FB affiliate sues
you, you can only countersue the affiliate. So if FB asks an affiliate to sue
you (maybe they sell the affiliate a couple of patents for instance), you
can't counterclaim against FB, you can only counterclaim against the
affiliate, which may not have a product.

Is that correct?

Thanks for raising awareness about the previous license. The new one
definitely seems better.

~~~
DannyBee
It is asymmetric vs Apache 2.0, but that's like saying GPLv3 is asymmetric vs
BSD.

Past that, to be honest, there are always "loopholes" in all of these licenses
related to transferring patents to entities/etc. Given any open source
license, i can come up with a valid legal way for an entity to sue you over
patents in it. But at some point, you have to trust that isn't the spirit/goal
of the license, because if it is, you are kind f*cked anyway. That point, has,
IMHO, been reached here now.

Otherwise, it's generally not a sane problem to solve in licenses. It's an
insanely complex area due to the ways it can happen. You generally don't want
to try to shove all that in one document, it'll be a mess, and you'll never be
able to update it for ambiguities discovered or change it with the times as
law changes (OSS already has a large enough problem rev'ing licenses)

Things like transfer problems are better solved by things like
[http://www.lotnet.com/](http://www.lotnet.com/), et al, which have specific,
well thought out and targeted agreements.

Yes, it makes it harder to tell your likelihood to get screwed, in the sense
that you have to know not only the actual license, but whether they are a
member of LOT or whatever, but i honestly can't see a good way around this.

~~~
throwaway41597
Thanks a lot for your answer. The part about loopholes explains a lot. But I
don't quite agree about the asymmetry.

If you use React, doesn't it basically mean that you de facto license all your
patents to Facebook whereas Facebook licenses those required strictly for
React? With Apache 2.0 or GPLv3, you would only de facto license patent
covering the software and the author would de jure license theirs. With BSD,
there is no de facto licensing from you, as termination doesn't relate to
patent suits. If so, the new grant is okay for people who don't have patents
but it seems unsuitable for those who do. Less patent suits overall would
certainly be a good thing but this condition seems very one-sided.

~~~
DannyBee
"If you use React, doesn't it basically mean that you de facto license all
your patents to Facebook whereas Facebook licenses those required strictly for
React?"

No. The only patent grants _you_ give are through CLA's. Otherwise, i'm not
sure i follow the concern?

~~~
throwaway41597
Say you use React and own patents. If you ever sue someone over patents, it
may terminate your React license in the case where the defendant uses React.
You may not even know it and keep using React happily after termination.
Later, you can't sue Facebook without them countering that your use of React
has been unlicensed since termination. Is this a valid concern?

While rereading the grant, I even wonder: (1) does the termination in the
grant mean termination of the copyright license as well? (2) asserting any
patent against "any party relating to the Software" could include end users
since they receive the same license and grant.

------
chamakits
This is what true commitment to open source looks like. Many companies may
have remained silent about this and never address it. Their projects where
already popular enough that they didn't really need to address the concerns
that many had about them.

But they did. And I'm sure it wasn't a trivial effort from whoever worked on
getting this amended. So I applaud Facebook and the people that worked to
address the communities concerns.

------
themgt
I think the key bit is _Notwithstanding the foregoing, if Facebook or any of
its subsidiaries or corporate affiliates files a lawsuit alleging patent
infringement against you in the first instance, and you respond by filing a
patent infringement counterclaim in that lawsuit against that party that is
unrelated to the Software, the license granted hereunder will not terminate
under section (i) of this paragraph due to such counterclaim._

In other words, it's an explicitly defensive capability they are reserving -
to revoke your patent grant iff you are the one to initiate a patent suit
against them. If every open source project included such a statement, it could
potentially do a lot to end software patent wars.

~~~
sulam
I don't think I follow the logic. Most of the "bad" patent lawsuits are from
companies that don't make any software. Not being able to use React (or even
Linux, let's say) would hardly be a problem for them.

~~~
tomjen3
I am sure that we could find some open source software that they use. Surely
they have a website? That almost certainly use Jquery, right?

------
scarboy
I'm glad that facebook fixed this solely for the fact that facebook open
source software discussions will not be dominated by the contents of the
PATENTS file.

~~~
sangnoir
Or possibly to increase the uptake of their projects at other large
corporates: thereby increasing mindshare/developer goodwill. Don't tell me
that Fb doesn't want to put up IBMs logo on the "who uses React" page

~~~
evincarofautumn
GP seems to mean this:

> I’m glad (Facebook fixed this). I’m glad (solely for the fact that […]).

You seem to have read this:

> I’m glad (Facebook fixed this solely for the fact that […]).

~~~
sangnoir
Thanks - you're right about how I parsed GP's text! Apologies GP.

------
SloopJon
Here's a diff from the osquery project mentioned in the post:

[https://github.com/facebook/osquery/commit/159899a303d0859eb...](https://github.com/facebook/osquery/commit/159899a303d0859eb7c3768561544c48ccea42b3)

------
watty
Thank god! This means every Facebook (React) thread on HN and Reddit won't be
half filled with patent arguments.

~~~
loceng
I'd much rather spend my energy supporting an idea or effort than having to
state objections for why it might be bad - as would I hope most who are
inventors and wanting to improve the world around them.

------
fuzzybunny
Can anyone comment on whether corporate M&A departments are concerned with
this license? An aquirer would either have to rewrite much of the code of
their newly acquired startup, or they would lose the ability to initiate a
patent suit. According to [1], Google is not able to use React. How much of a
concern is this when considering a new aquisition?
[https://news.ycombinator.com/item?id=9271246](https://news.ycombinator.com/item?id=9271246)

~~~
jamesgpearce
NB that post pre-dates this change.

~~~
fuzzybunny
The scenario I'm worried about may still be a valid concern under the new
license.

Here is the scenario:

1\. Google decides to buy my company in 2016.

2\. They ask me to purge my codebase of React, so I switch to Angular.

3\. Some years later, Google decides to sue Facebook over a blimp route
optimization algorithm.

4\. Facebook responds: "Well Google, one of your subsidiaries used React back
in 2015 before you bought them, and now that you're suing us, that grant is no
longer valid, so you're now liable for infringements on our React patents."

So with that scenario in mind, Google chooses to pass on buying my company,
leaving some smaller acquirers, and maybe Facebook as possible buyers.

Please tell me this is not how it works. I would love to use React, but I
can't bet the farm on this without more assurance.

~~~
tomjen3
INALIDEPLT: That is not how it works - a termination of the licences means
your license is no longer valid, much like you can have any other agreement
terminate but that doesn't mean it wasn't valid in the past. It would
essentially be the same as if you had a license that was purchased for X years
- you can't use it more than X years, but that doesn't mean you can't use it
during that period.

~~~
mcintyre1994
Sorry it's a bit off topic but what does that acronym mean? Your post is the
only result for it on Google!

~~~
tomjen3
I am not a lawyer I don't even play one on tv.

Also apparently I now rank on Google for something; that is pretty cool.

Edit: of course, I also fat fingered that one - the l should have been an o.

------
oe
Waiting for some Lawyer to explain why they think this is or isn't great. But
mostly out of interest. The old patent grant never prevented me from using
their projects.

------
marcofiset
What does this whole patent thing mean? I'm not well-versed at all about
licenses and patents and the technical jargon of the file is mostly non-sense
to me. Would someone care to simply explain what this implies?

~~~
nemothekid
From what I can understand from [1][2][3], is the previous patent clause meant
that if you and Facebook got into patent litigation, any open source software
you used that was written by Facebook would be revoked (opening you up to a
license breach). This was scary because Facebook owns a ton of patents and if
Zuckerberg woke up on the wrong side of the bed one morning and decided to sue
everyone with their portfolio of patents, it would be impossible to countersue
if you used any Facebook code. The other posts go into how companies like
Google and Facebook use patents as a way of ensuring mutually assured
destruction, and if Google had used Facebook code under the license it would
be like Google disarming all their nuclear bombs against facebook.

IANAL, but it seems the new license is a bit more GPL-esque in its
restrictions by saying if you use this software than you cannot sue Facebook,
its subsidiaries, and your parent weapon of choice can't be based off Facebook
software (or else you lose the software license). However if Facebook sues
you, then you don't lose the license and you are free to counter sue facebook
with your nuclear arsenal of patents.

The reason I call it GPL-esque is it seems to introduce restrictions on how
you can legally use the software once you've incorporated it (like how the GPL
prevents you from not redistributed the source code), the Facebook license
seems to prevent you from launching patent claims that are built off Facebook
software. My guess is that if enough people used this license it would be
difficult to litigate anyone else without revoking some of your software
licenses.

Finally, I never took a law class a day in my life and the closest domain
knowledge is an intro to econ class I took in freshman year of college so I
could 100% wrong.

[1][https://news.ycombinator.com/item?id=9271246](https://news.ycombinator.com/item?id=9271246)
[2][https://news.ycombinator.com/item?id=9111849](https://news.ycombinator.com/item?id=9111849)
[3][https://news.ycombinator.com/item?id=9113515](https://news.ycombinator.com/item?id=9113515)

~~~
themgt
Yep, it's effectively a viral (or at least infectious) patent grant.

------
danschumann
I think this is an upgrade. The patent as worded before made it seem like if
Facebook sued you, you couldn't both defend yourself and keep your license. In
this version, it seems, that you only lose your license if you are the first
actor in a lawsuit.

Any legal people to verify what I said?

------
linuxhansl
Why not just use the ASF 2.0?

[https://www.apache.org/licenses/LICENSE-2.0](https://www.apache.org/licenses/LICENSE-2.0)

It comes with a patent grant.

~~~
tomjen3
Also, as far as I know, not compatible with the GPL.

~~~
pluma
Not compatible with GPLv2, but compatible with GPLv3:
[https://www.apache.org/licenses/GPL-
compatibility.html](https://www.apache.org/licenses/GPL-compatibility.html)

------
yizi
I don't see how this makes everything okay to use now? To me it basically
means, if I sue Facebook for any reason involving patents, I would have to
give up using its code. I invent a time machine, Facebook can infringe on my
patent and I can't sue unless I stop using their code. Please tell me I am
wrong.

~~~
Rapzid
It reads to me like the patent grant license is revoked. So yes, but maybe
not? Does facebook even have patents applicable to react?

------
choppaface
The patent language in the previous FB license seemed pretty similar to the
patent language in Apache 2.0. Can anybody comment or link to a discussion of
why the FB language was undesirable? And why not change Apache 2.0 in the same
way? (Confused)

------
cmwelsh
Can you sue Facebook for patent infringement and still use React.js?

What I mean by that is... do you actually need this patent grant to use
React.js? Since React.js is BSD licensed, can you distribute a fork of
React.js that does not include this file?

~~~
pluma
Without an explicit patents grant, you're not granted any patents and
therefore could be sued for patent infringement if the software is covered by
any patents owned by Facebook.

Also, I think the "license" (in the legal sense) for React consists of both
the LICENSE and the PATENTS file, so in order to re-distribute the project
you'd still personally need to obey its terms.

There's also the problem that the requirements for a "derived work" (which
could be distributed with your own license) are more complex than "change a
bunch of files", so if you simply slap a new license on someone else's project
the new license is not necessarily enforcible and you may be infringing their
copyright.

Basically, IP law can not easily be gamed (case in point: legally speaking
there's nothing wrong or unexpected about patent trolls).

------
raquo
> A "Patent Assertion" is any lawsuit or other action alleging direct,
> indirect, or contributory infringement or inducement to infringe any patent,
> including a cross-claim or counterclaim.

Does "action" has any special legal meaning here? It almost seems that you
can't write a _blog post_ about facebook infringing on any patents.

~~~
fncypants
Yes it has special meaning that lawyers tend to forget confuses laypeople. A
legal action is a term of art that means a legal proceeding such as a lawsuit
or a petition at a gov't agency. From Black's Law Dictionary:

Lawful pursuit for justice or decision under the law, typically leading to
proceeding within the jurisdiction’s court system. An entity accuses another
for a unlawful action, to protect an entity’s rights from violation

------
stephengillie
Off-topic, running this URL thru Get-Webcontent (aka curl for Powershell)
produces an interesting pattern:
[http://i.imgur.com/2vjxq8G.png](http://i.imgur.com/2vjxq8G.png)

------
serve_yay
I wonder what will be the next scapegoat non-technical reason not to use it :)

~~~
jakejake
This may not have been an important issue for you, but many of us actually
have to pay attention to licenses. There are components out there that I would
very much like to use, but can't for licensing reasons. Having Facebook
respond and make changes is quite welcome.

~~~
serve_yay
So, this was really all that was keeping you from using React, then? That's
great to hear.

~~~
jakejake
You presume that I haven't used React. I also use and release GPL code,
however I can't use that at work either.

