When I first brought up how misguided people were for embracing React and projects with this license, I was downvoted to hell on HN. But really, everyone, THINK ABOUT IT. This is a company that glorifies and celebrates IP theft from others, and lionizes their employees who successfully clone others’ projects. They’ve built their entire business on the back of open source software that wasn’t ever encumbered with the sort of nonsense they’ve attached to their own projects. And this industry is just going to let them have it, because the stuff they are putting out is shiny and “convenient” and free?
Having known so many people involved with Facebook for so long, I have come up with a phrase to describe the cultural phenomenon I’ve witnessed among them – ladder kicking. Basically, people who get a leg up from others, and then do everything in their power to ensure nobody else manages to get there. No, it’s not “human nature” or “how it works.” Silicon Valley and the tech industry at large weren’t built by these sorts of people, and we need to be more active in preventing this mind-virus from spreading.
By the way, the fact that Facebook is using this on their mostly-derivative nonsense isn’t what should concern you. It’s that Google has decided, as a defensive measure, to copy Facebook’s move. Take a look at the code repo for Fuschia and you’ll see what I mean. Imagine if using Kubernetes meant you could never sue Google?
To use React, you give Facebook permission to use any of your software patents (edit: all patents, even on a new jet engine) throughout your whole company. Facebook gives you permission to use only the software patents necessary for React.
If your company sues Facebook over an unrelated software patent (edit: as above, any patent), your React license (to the React patents) is pulled and if your business has any dependency on React that part of your business is broken until you can port to something else, or you are in license violation if you keep using it.
On the other hand, if Facebook sues you over a software patent (edit: any patent) that isn't related to React, they are still free to do so (edit: you become free to defensively sue with other patents in response and not lose your license to React patents, meaning with the nuclear analogy below you give Facebook "first strike" capabilities but are allowed to keep a retaliatory-only arsenal).
So there is a big asymmetry: all of your software patents for a few of ours. (edit: all of your patents for a few react software patents)
It's a nuclear arms reduction agreement where Facebook gives up 1% of nukes in exchange for co-signers giving up 100%.
(edit: as pointed out below, it is a much worse deal: you give up all patents on everything, not just software patents; Facebook only gives up software patents on React)
That is, on its face, absolutely untrue. Nowhere in the React patent terms does it specify that you grant Facebook rights to use your patents--not even to ones related to React.
That's something that isn't in the React terms, nor does it seem to show up in any legal analyses published online from a lawyer making that claim. (None of the analyses I've seen, at least; if you found some, please post them.) In fact, the only place where this claim does crop up is in off-the-cuff message board comments.
FWIW, I don't use React, I don't want to, I'm not a Facebook employee, and in fact I think the world would be a lot better off with Facebook having less influence than they do today. But that doesn't change how weird it is to keep seeing comments like yours that make claims like the one above.
Then you have no patent protection in the first place! You are in the same situation as when the patent grant expired because you sued them. I don't see how this is any better.
You do not give them a license to use any patent. You are right that in practice the non-enforcement means that they can willy-nilly use your patents. But if we are arguing about factual ability vs legal rights - they can probably already to that, due to the fact that they likely have more money and better lawyers then you do.
And if you do have the license - then what? It's still a react death-knell should any submarine patent appear; no large company is every going to agree to such an assymetrical deal.
Better to at least be left in the situation where it's likely in facebook's own interest to never surface any (so restrictively licensed) patents in the first place.
The thing is, if you just use react for something inconsequential, and can live with the fact that you have to cease using it when you sue Facebook, then it is fine.
You shouldn't base your business on Facebook's (potential) patents, and then attack them with your own patents - but that is true with or without the patent grant.
Of course, what would be great would be 1) a finer grained, symmetrical patent grant, or 2) a bilateral agreement between your company and Facebook instead of the patent grant. If you are big enough and have patents, you can probably negotiate something like that.
The chilling future effect, which I believe is the primary driver of op worries, is what if you build on React and are the next Facebook? (I.e. you are growing quickly to become "big enough" but are not yet)
Old Facebook now how a lot more leverage on you at several critical moments -- either in terms of making an offer, or in the negotiations around a more reciprocal patent licensing deal, or the aforementioned infringing of your patents, or the mere threat of either if someone else makes an offer.
The entire point of ladder kicking is to build a moat to ensure that others can't grow past you in the same way you did, and this is pretty effective at that (intentionally or unintentionally).
As you said, a more reciprocal, more finely-scoped patent balance would resolve these concerns. (E.g. "if you sue Facebook over a patent involved in React...")
If Facebook wanted to be the good guys here they would license under Apache 2.0 or write their own symmetric patent grant. They already relicensed RocksDB after Apache's move, perhaps they will do the rest of their stuff too.
Not really. If you have BSD with no patent grants you can at least argue that there's an implicit patent grant. If there's an explicit patent grant which you violated/got terminated that defence is clearly not going to fly.
I was involved with an opensource project which got a patent application submitted by the company. Even though I pointed out prior art. And even though I refused to sign the application as one of the authors. That's corporate environment for you.
If Zuckerberg signs a paper with the wrong title, there's a troll lawsuit the next day. So if you make a habit of "in practice" strongarming people, you can easily slip up and have a huge headache on your hands.
You maybe be right, but why would I want to take my chances?
I detailed the specifics.
Take this example:
In exchange for doing graphic design on your menu, I stipulate that I can shut down your bakery if you take me to court when I eat from the bakery without paying. Now, sure, I haven't granted you the right to come eat my wares, but I'm going to have to shutdown my shop to keep it from happening.
In this case as long as you change the menu you can go back and enforce it, but with software, it isn't as feasible (say you had a game built on top of Raknet, which has the same PATENTS rider).
Ceding your license to use any patents Facebook may or may not have on React. There's a difference.
You may still have other kinds of patents, which are very much enforceable.
I'll send you US$50 if you can find ANY evidence this is true in the US, UK, Aus, or Canada. :)
PA:facebook* AND FP:(Hierarchical user interface) AND CTR:US
Now where does it say that? The way I read it, so long as you don't sue Facebook, you have a patent grant. If you believe people when they say that their patent portfolios are purely defensive, there is no problem.
On the other hand, being the aggressor in a patent lawsuit loses you the patent grant. This seems sane enough to me.
The normal state of affairs is completely ambiguous about patents. You get no explicit grant, so if they feel like suing, there's nothing to stop them. Some people claim an implicit grant, but there's no conclusive ruling on it.
I don't particularly care for software patents, but I don't see anything more stupid than the usual lawyerly CYA layered on an attempt to disambiguate the patent situation.
The clause also doesn't explicitly cover software patents only, so if Facebook infringes on your hardware patents (which is plausible, since Facebook does hardware related work as well), you still can't sue them.
It might as well say "we agree to not destroy your business using dirty tricks if you don't attempt the same".
Of course, opinions on that are divided...
This is an oversimplification. There are plenty of mum and dad inventors who would get destroyed by large companies but for relying on patent protection for their life's work.
Why should Facebook support companies that are suing them?
If they were offering something unique or especially distinctive, then maybe it would be worth risking, but as there are half a dozen or so alternatives, why bother putting myself into that particular pickle?
This doesn't prevent you from suing. It just prevents you from suing over patents.
I can understand why Facebook would want to have a clause like this (to discourage lawsuits against them), but I would consider it against the spirit of open source to do so (ie. Facebook should be able to continue to do this, but I wouldn't consider React to be open source software in that case).
I guess the GPLv3 has provisions for patents, but older licenses didn't. I remember some controversy around open source video codecs that you were not able to use safely because they were infringing patents.
GPLv2 didn't have a patent grant because it wasn't a very well-known issue in 1991. Apache 2.0 was the first free software license to have a patent grant (which unfortunately made it GPLv2 incompatible) but GPLv3 included a similar (though stronger) patent grant because of Apache 2.0.
While these may sound like theoretical problems, people have been sued over using GIF, MP3, etc before. Every time you install Firefox, it will download a free software binary from a Cisco server that does h264 decoding. However, they cannot legally recompile the binaries themselves as it means that the patent grant no longer applies and Mozilla (or your distribution) could be sued -- even though the binary's source is BSD-licensed.
Where does it say what? Which part of my post are you taking issue with, because I would love to correct anything.
What it certainly doesn't say is that Facebook's patent portfolio is non-aggressive. And when, outside of this, has Facebook said that about their entire portfolio (I'm not saying they haven't, I just haven't seen that before)?
My professional opinion is that if you use React and are concerned about this, talk to your attorney.
Has any of this React patent usage agreement been tested yet?
The answer to that one is, unfortunately, yes.
Maybe someone out there has access to legal cases and could help?
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edit: nvm, I misread line 16-17. Naturally line 21-26 is mostly useless.
> The license granted hereunder will terminate, automatically and without notice, 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: (i) against Facebook or any of its subsidiaries or corporate affiliates
If you have to agree not to enforce any of your patents, that's pretty much equivalent to giving Facebook the rights to use them.
Obviously, if that were to happen, you’d simply have to stop using React or else you’d get countersued for using React without a license right?
Why would anyone use React ever if that’s how it works? It feels like a payday loan – React makes it “easy” right now, but if your business is built dependent on React, you could pay a serious price later in exchange for “right now” convenience. It makes a strong case for Ember or Glimmer or any of the other front-end systems not tied to Facebook. Imagine a React “Native” app around which your business is based – you’d have to rewrite the entire thing of Facebook were to start using some patented aspect of your business.
Perhaps I am misinformed, but it seems absolutely bonkers to essentially indemnify Facebook from patent infringement just by virtue of using React somewhere in your business.
Imagine if Apple did this: if you release on the App Store using Xcode, you can’t sue us for any patent infringement ever or we’ll sue you for using Xcode illegally.
Is my assessment correct? Is React that good to risk such a situation? Facebook could sit back and watch a company using React develop something amazing, then Facebook could steal it and you’d have no recourse but to stop using React. Meanwhile, while you are rebuilding your application, you lose all your customers, but if you don’t rebuild your application, Facebook can legally take your invention and crush you in the market. Either way, you lose – simply because a few developers on the team were insistent on React’s greatness. If I were a VC, I’d be incredibly wary about supporting a company using React for their primary application.
Am I wrong? I am not trying to be argumentative – I just want to be sure I am understanding this correctly.
It's funny you mention Apple, because the Apple Public Source License has a very similar provision.
> 12.1 Termination. This License and the rights granted hereunder will terminate:
>(c) automatically without notice from Apple if You, at any time during the term of this License, commence an action for patent infringement against Apple; provided that Apple did not first commence an action for patent infringement against You in that instance.
The good news is that the Apple Public Source License is basically dead and not used for anything of importance.
Please explain to me - are they able to change it again at any time in the future to "unclear" it again or just change wording altogether? Will it affect all users retroactively in that case? Because all this "they had bad wording in license but they changed it so we can use it now" sounds kinda crazy.
The University of California did something like this in 1999 when they cancelled the advertising clause of the original BSD license. See ftp://ftp.cs.berkeley.edu/pub/4bsd/README.Impt.License.Change.
I see nothing that limits the termination clause to patents involving React. The only limitation following those general lines is the one you quoted, which is a limitation on the exception, implying that the license does terminate if the patent over which Facebook sued you is a React patent.
Is this widespread at all or is it just Facebook..?
Edit: I'm glad to be downvoted for asking a genuine fucking question if anyone else does this since Apache mentions Facebook and the only place I ran into PATENTS file is another Facebook property and googling brings nothing up except more React..
There's a larger problem here, and I feel it comes down to our collective attitudes.
In the case of Fuschia, I don't see any more restriction of end-user rights than Apache 2.0 would give you. The only real difference is this line:
> This grant does not include claims that would be
infringed only as a consequence of further modification of this
That makes it clear if you make a modification to Fuschia, that infringes on a patent that Google holds, that you don't automatically get rights to that patent too. Apache 2.0 doesn't mention that, but it appears implicit to me as Apache 2.0 only gives you patent rights to whatever is in the source.
So did Amazon apparently and others. At least Google have open sourced many interesting and useful projects so they have given back. Microsoft have been open sourcing things lately too. Others so so.
I'm having a hard time coming up with any examples; the lawsuits that come to mind are patent trolls, where the "little" company is a non-practicing entity so they can't be counter-sued for violating the giant's portfolio of patents. But, you sound pretty certain, so I want to figure out where I'm wrong.
You've made it sound like it happens all the time. I've been in the tech industry for two decades, and I can't think of any (though I'm sure they must exist). I assumed you had some cases in mind when you made the comment earlier, and I wondered what it was. I'm not demanding you go search for such a case. But, absent some sort of example, I'm gonna continue to assume it (almost) never happens.
Take that threat away, and small companies lose value and large companies copy without regret.
Instead of trying to make a perfect spam filter we should abandon outdated inreliable mail transfer protocol.
(I'm the executive director of CNCF and wrote the blog post. )
Calling what it is has become unpopular amongst the hipsters.
What are you referring to?
- As stated in the standard BSD 3 clause, you're more or less licensed to do whatever you want with the software.
- The above doesn't give you a patent grant (at least not an explicit one), so Facebook also grants you a license to use any patents they have associated with the software.
- The ONLY possible way you can lose the above patent grant is if YOU sue Facebook for patent infringement.
Even if we assume, for the sake of argument, that everyone working at Facebook is a child of Satan, the only thing your company has to do to not lose the patent grant is NOT SUE Facebook for patent infringement. Seems pretty simple, no?
If your company is one that plans to, as part of its business plan, make money by suing companies like Facebook for patent infringement (which I have nothing against by the way), probably don't use react . Everyone else, what is there to lose?
Is the BSD-3 + PATENTS as nice as the Apache 2? No. Is it anything to get hysterical over? I can't see why.
I speculate that this grant was probably written in this way to ward off NPEs, but I doubt any of those NPEs actually would use React and so in reality it causes issues for pretty much anyone else that cares.
Of course, that issue was rapidly closed with essentially a "we don't think there is anything to worry about here" -- ignoring that even if Automattic may not have patents to defend, any of their customers who has patents could face an issue using Calypso.
All this is made more confusing by the fact that Facebook changed the React license over time from Apache to BSD+WORSE_PATENTS and then to BSD+LESS_BAD_PATENTS. And it looks like Automattic may have started using React when it was Apache licensed. So they got the rug pulled out from under them by trusting Facebook. I can wonder if their code might be considered to have grandfathered Apache patent licensing rights?
The Fuchsia license by Google (at least the one file I looked at) does not seem to me to be that different from other FOSS Patent licenses in that it is not as broad as Facebook's and just covers patent claims about Fuchsia itself. So I would not put it in the same category as React's much broader PATENT retaliation clause which applies for any disagreement over any patents with Facebook whether they are related to React or not. So it is more like if you sue about Fuchsia patents you can't use Fuchsia.
What if you got acquired. What if something unexpected happens. What if you got pulled into some suit against Facebook. There are a ton of things that could potentially happen.
https://blog.xkcd.com/2010/05/03/color-survey-results/ (at the end of post)