
Don't Over-React to the Facebook Patents License - XiZhao
https://blog.fossa.io/dont-over-react-to-the-facebook-patents-license-629f708f2221
======
pzduniak
>Unless a company decides to sue Facebook (or accuse its products), the
termination trigger has no actual effect.

What if Facebook actually breaches your patents? What if they sue you? You
can't counter-claim if your tech is based on React, because you'd lose the
grants.

~~~
JimDabell
Also: What if a company you are in a legal dispute with gets acquired by
Facebook? This is a threat even if you _don 't_ expect any conflict with
Facebook.

~~~
gregmac
Likewise this could be a concern if a company -- especially a big one -- is
looking to acquire yours.

------
rdtsc
I'd like to extend my thanks Apache Foundation. By questioning and
scrutinizing the patents / license clause they cleared up a bit what
Facebook's intent was there. A lot of people have been claiming it is just
corporate boilerplate, get over it, etc, etc. At least in the case React
that's not the case. There is a strategy there and one where FB hopes to
inoculate itself against being sued for patent violations.

It is also interesting that for some libraries like RocksDB and zstd they
didn't mind changing the license too much. So some projects are more strategic
then others it seems.

Now I am not blaming them or saying they should change the license, it's their
code, they can do whatever they want with it. It is just that the idea of it
just being boilerplate legalese can be safely ignored from now on.

------
common_
> I do represent Facebook on open source matters, but I did not draft the
> BSD+patents license grant.

On what planet is this not a conflict of interest? Why isn't this at the top
of the article?

Are there any people out there who don't work for Facebook or use React code
who are willing to defend the patent license? I don't think so.

~~~
DannyBee
FWIW: Heather represents a _lot_ of companies, including many staunch
competitors to Facebook as well. For example, she's represented Google in open
source matters, etc.

I don't think it's fair to say "she works for facebook", and she's a very
honest and reputable person.

If you want to engage on the merits, i'd engage on the merits. Attacking her
because she has a ridiculously long client list is silly (she's probably the
top open source lawyer in the country in terms of who she has represented).

------
andrewfong
As pointed out before, Facebook's license only terminates with respect to
patents (not copyright) if you sue them for patent infringement. So ... given
that, the important question is what are the actual patents that cover React?

Here's why it matters. In my mind, there are basically three scenarios:

(1) There are no patents. This seems the most likely scenario. Patents are
public. As far as I can tell, no one's pointed to an actual React patent yet.
If this is the case, then the patent grant is irrelevant. Facebook can't
revoke a license for a non-existent patent.

(2) There is a patent (or will be) -- but it covers some relatively new,
hyper-specific feature of React. Generally speaking, patent examiners force
patent prosecutors to narrow the claimed patent to avoid prior art. So in
React's case, you might end up infringing the patent by using React but only
if your copy of React comes with JSX, per-component state, context, and the
new fibers stuff. So in order to get around the patent, you could fork React
and remove per-component state or maybe you pin React to a version prior to
the introduction of fibers and use that. This would super annoying for a large
code base, but if Facebook actually was infringing your patent (and you
thought it was a big enough deal to bring in expensive lawyers), forking React
is a (relatively) small price to pay. Remember that Facebook's copyright
license isn't subject to patent revocation, so forking to work around a patent
is totally allowed.

(3) There is a patent, and it's huge. So huge, that you can't really fork
React to work around it without completely destroying what makes React work.
But here's the kicker. If such a patent existed -- for the sake of argument
here, let's say the patent is for components or shadow DOM -- then it probably
also covers Vue.js, Angular, or whatever other framework you might want to
use. That's terrible! But it suggests that the real problem isn't Facebook's
PATENTS license, but the underlying patent itself (which OSS advocates should
be trying to kill). At any rate, this seems unlikely -- there's lots of prior
art for React out there.

------
sgift
> If you want to fling patent claims at a company that developed and released
> a great piece of code, removing the code from your business seems like a
> reasonable price to pay.

That seems to be the main point: Do you agree that you shouldn't be able to
sue a company whose open source code you use or do you not? Everything else is
just .. noise?

~~~
rhizome
What if you bought a car that exploded and sued the car manufacturer, and then
you weren't allowed to own or drive any of that manufacturer's cars anymore?

~~~
f_hckr_news
Bought versus 100% free.....

~~~
rrix2
Cars are just computers with wheels, and are bound by similar restrictions. So
let's amend the scenario:

The car you bought gets in to a car accident because of software running on
the car, which is licensed to you in similarly revocable terms to the shrink
wrap currently on the market.

Both this software and React are software licensed to you in this case, should
you be legally disallowed from ever purchasing a car from that company again?
What if it's a cloud service that powers the car in some fashion which you
want to sue over?

------
kevin_b_er
The opening lines of the BSD license: > Redistribution and use in source and
binary forms, with or without modification, are permitted provided that the
following conditions are met:

So do I have the permission of "redistribution and use" in the BSD license or
don't I?

If yes, the patent license was unnecessary, as I've got a license to copy and
_use_ the software from the BSD license.

If no, then it isn't the BSD license anymore.

I believe facebook's lawyers intended the latter, the no answer.

So no one can redistribute React under BSD, as they cannot proof the
permissions of the BSD license. Therefor React is not BSD licensed.

~~~
kybernetikos
You've got copyright rights to use it, but that doesn't mean you have patent
rights to use it.

This is true of BSD licensed software in general, the author can grant the
copyright to copy and use it because they own that, but there may be patents
that cover the relevant area which they may not own and so they cannot grant a
patent license. As far as I know the BSD license is not normally thought to
contain an implicit grant of patents that the author holds. If companies
thought that it did, they would probably set up separate companies to funnel
all their open source contributions through so that there could be no
misunderstanding about patent licenses.

Regardless, if I thought I was depending on an implicit patent license that
had never been tested in court for some important piece of software my company
was using, I'd be more nervous than if that patent license were explicit.

------
sandGorgon
Its not just React - its React Native and Caffe2.ai as well. And these are
more dangerous.

Arguably, Reactjs can be replaced by something else. But a mobile app in the
wild cannot be replaced easily or quickly. And more so if you are using
something like caffe2go (deep learning on the smartphone).

Or the data and training sets that you build around caffe2.

------
eveningcoffee
I think quite contrary is true. Strong reaction to this is the only way.

~~~
XiZhao
I don't think the amount of controversy Facebook is receiving on this is
justified. The patent license could maybe be adjusted, but people's
interpretation on this seems to be geared towards spreading FUD over facts.

~~~
eveningcoffee
The provided licence is a discriminatory licence that favours only one party -
Facebook. I believe that it could not be called an open licence.

Author argues that the situation is not that bad and it is still somehow an
open licence or even when not then it is still acceptable. I believe that it
is neither of them.

------
chaostheory
> Defensive termination provisions of the scope in the Facebook grant are very
> common in patent licensing, OUTSIDE of the OPEN SOURCE LANDSCAPE.

(Emphasis mine) yes this is why people are up in arms. This isn't common in
the open source ecosystem.

------
matharmin
Given the number of people advocating on HN that software shouldn't be
patentable, I'm surprised at how many people now consider it vitally important
to be able to use software patents against Facebook. If you do not believe in
using software patents, this patent clause should not affect you in any
negative way.

~~~
JoshMnem
There are also defensive patents. If you don't defend them, you can lose them.
If Facebook (or a company that they acquire) starts by infringing your
patents, then the PATENTS file would seem to apply.

I haven't heard anyone address that scenario yet.

------
CodeWriter23
Note: this is not legal advice. If this possibility concerns you, consult a
real lawyer.

Nice apples-to-oragnes comparison of the WebM PATENTS to the React PATENTS.
The only things they have in common is the scope of the grant. The revocation
clauses range from fair and sane in the WebM case to extremely overreaching
and unpredictable in the React case.

The WebM PATENTS causes revocation for litigation against Google for patents
covered under the grant.

The React PATENTS causes revocation for litigation against Facebook for ANY
patent, regardless of whether the patent was covered by the grant or not.

The WebM PATENTS causes revocation if "you or your agent or exclusive licensee
institute" sue Google. That's pretty much limited to you / your company / a
subsidiary of your company using the code.

The React PATENTS causes revocation if "you (or any of your subsidiaries,
corporate affiliates or agents) initiate directly or indirectly, or take a
direct financial interest in, any Patent Assertion" \- this is where the React
PATENTS clause shows it's teeth. "Corporate Affiliate" has a wide definition.
For example, a shareholder is a "Corporate Affiliate". So if you own Company A
as your startup and use React and also own shares in Big Company B as an
investment, then if Big Company B sues Facebook, guess what, Company A loses
the patent grant. Or more likely, loses the license and is then hit up for
license fees or is then sued if they continue using React.

------
anuccio
Heather Meeker is one of top lawyers in Open Source...most of the other people
in this conversation don't have a background in this and should be ignored

~~~
ABCLAW
Heather Meeker is a lawyer who represents Facebook. I have a background in
this (although I am not your lawyer, so please do not take anything in this
post as legal advice). The license is a serious issue for a subset of software
companies and private developers.

Interestingly, most of the posters correctly identify the core concern. If
you've invested significant resources into developing React projects, have IP,
and Facebook infringes your IP, you're in very hot water.

Most businesses aren't competing with Facebook or patenting business critical
innovations in spheres Facebook will be operating in. Using React in all of
those cases is a non-issue.

For these people, the license's restrictions seem very minimal, so dumping
React in the Open Source bucket seems reasonable.

For others, this restriction is an existential threat. This is why other
people have an issue with the license being considered open source.

~~~
DannyBee
"Heather Meeker is a lawyer who represents Facebook. "

As mentioned, Heather has represented a ridiculously long list of clients,
including many strong competitors to Facebook.

If she says it's her personal opinion, you can take that to the bank.

In fact, given how many client she's represented, i'd say she's probably
_less_ biased than most folks. She's pretty much seen and dealt with it all.

~~~
ABCLAW
I don't agree with your premise, that a variety of clients makes a
representative inoculated against bias. If anything, it makes certain biases
more pernicious as you examine the circumstances of your selected client
roster while increasingly discounting other stakeholders.

I've seen this bias arise in senior practitioners with successful practices
across industry groups.

In any event, her person is somewhat tangential to the important point: the
react license is a substantial issue to a subset of people and organizations.

------
talkingtab
There is certainly some confusion about this issue and some concerns about
Facebook's intent. The gist of the article comes down to "don't worry, nothing
has changed." While that is very nice, it can paraphrased as "Don't worry
Facebook has always had a gun pointed at your head." Also, it is not until the
end of the article that the author tells us she represents Facebook.

It would be very helpful to get some clarity about a scenario where many
people have concerns: (text copied from another comment)

"What if Facebook actually breaches your patents? What if they sue you? You
can't counter-claim if your tech is based on React, because you'd lose the
grants."

Facebook could make a definitive statement about this. Or, representing
Facebook the author could spell out exactly why this cannot happen. Yes?

------
dechov
> [...] provides more protection for the contributor (Facebook) against
> software patent claims of licensees. It’s odd that a community so opposed to
> software patents would find this objectionable [...]

While confusion about the license might be behind some or most of the
community reaction, the fact that the license refers to litigation over any
patent, not just software patents, neutralizes this punchline. Correct me if
I'm wrong, but this clause positions Facebook to fight any patent infringement
suit with a software patent infringement suit, which is not in the spirit of
the opposition to software patents at all.

------
ageitgey
The arguments made in this article are misleading in my opinion.

The article claims that the Facebook patent grant is no big deal because:

    
    
      (1) Yes, it has defensive termination, but defensive termination is standard. 
      (2) Even Apache's own Apache 2.0 License has defensive termination.
      (3) And while Facebook's defensive termination language is on the broad side, it is similar to IBM's CPL 1.0 (an OSI approved license).
    

The first two points are completely true, but the third is misleading at best.

First, IBM's CPL patent grant triggers termination if you sue a _project
contributor_ for software patent infringement. Facebook's patent grant
terminates if you sue _ANYONE_ if _ANY PART_ of your patent claim relates to
_ANY_ product or service of Facebook or _ANY_ of it's corporate affiliates.
That's about as broad as you could possibly get.

Does that mean that suing a Facebook shareholder like Microsoft for patent
infringement totally unrelated to Facebook could invalidate your React patent
grant? Who knows? I bet your lawyer hates you for asking.

Second, the article claims that the "CPL is already approved by the Open
Source Initiative as compliant." Using the CPL 1.0 as a point of comparison of
what is a normal OSI-approved license is completely silly.

If you check the OSI site, the CPL is technically classified a "Superseded
license" which means it's not intended for further use. It was formally
replaced by the Eclipse Public License (EPL) _about a decade ago_. Most
notably, the newer Eclipse license has a _much less strict patent termination
clause_.

So why did Eclipse go through all the work to re-write their license and
replace CPL? This is important - I'll cut and paste directly from the Eclipse
Public License FAQ [1]:

    
    
      "Why was the EPL written?
    
      [..snip..] it addresses concerns some Eclipse Foundation members had with how the CPL deals with possible patent litigation."
    

In other words, the CPL 1.0 had the exact same patent grant criticism lodged
against it - _so Eclipse ditched it and re-wrote the license and deprecated
the earlier license_.

So saying that "Facebook's license is normal" because it's a more broad
version of a license that OSI suggests you no longer use is pretty misleading
in my opinion.

[1]:
[https://eclipse.org/legal/eplfaq.php#WHYEPL](https://eclipse.org/legal/eplfaq.php#WHYEPL)

------
raprp
It amazes me the number of people saying that nobody should be worried, that
this license is nothing and even that libraries that do not use this license
are riskier.

They added this license for a reason and they will use this leverage as much
as they can and if you don't see that you are in denial.

If you cant move away from it, then stick with it. If you can move away or are
still building your product just pick another framework and move on.

------
SoftwarePatent
I call bullshit

> Unless a company decides to sue Facebook (or accuse its products), the
> termination trigger has no actual effect.

Please everyone, don't rely on this advice.

~~~
cheapsteak
It's right there in the PATENTS file on github. It's also only 33 lines long
and quite easy to understand

[https://github.com/facebook/react/blob/master/PATENTS](https://github.com/facebook/react/blob/master/PATENTS)

------
nicklovescode
Great read. Facebook doesn't deserve all this flack directed at them, and I
wish more people offered this kind of technical breakdown

~~~
remline
This breakdown cherry picks comparisons, is written by someone who discloses
they represent fb in license matters and denies the nature of reality between
2013 and today.

I looked at react during the first hype was alerted to its license terms right
here on hn by other people who understand the difference between software with
a termination clause for those who sue to gain exclusive/royalty rights to the
particular software and software with a termination clause for those who sue a
particular party engaged in a significant amount of unrelated activity.

All that has changed recently is that more people are questioning their
strange assumption that it doesn't matter since it is incongruent with fb
again putting a recent rework and then substantial defense into something that
"doesn't matter".

------
carussell
> for [some licenses], bringing a patent lawsuit can result in termination of
> the copyright license as well — forcing one to stop using the code

No. Copyright law is concerned with distributing copies and preparing
derivative works. Copyright law does not give a creator the tools to forbid
anyone from using their copy—that too is within the realm of patents. The way
that copyright law can _effectively_ regulate use is indirect; it prevents
someone from receiving a non-infringing copy to do anything with. If you are
found to violate a license (say because it's a reciprocal license and you
didn't provide source code for your own changes), then even a revocation of
that license can't revoke your ability to continue using the software, because
that is not something regulated by US copyright law. The copy you received was
prepared and distributed to you legally. Filing a patent suit, or otherwise
running afoul of the license doesn't change that.

There's a really pernicious cargo-culty thing going on where people keep
describing a bifurcated situation, where the BSD is your "copyright license"
and "PATENTS.txt" is your "patent license".

BSD is a license. It deals with rights reserved for copyright holders—the
right to make copies and prepare derivative works. It also deals with (one of
the) rights regulated by patent law—the right to use. It grants you both.
PATENTS.txt is an additional grant.

~~~
icebraining
IANAL, but in _MAI Systems Corp. v. Peak Computer, Inc._ the court considered
that running software involved copying it to RAM and therefore required a
valid license. Congress has since made an exception, but only in the
circumstances of computer repair.

Regardless, the distinction in this case is mostly academic, since React is
almost always used in client software, which must be distributed.

