For those who aren't aware, it says
1. If facebook sues you, and you counterclaim over patents (whether about software or not), you will lose rights under all these patent grants.
So essentially you can't defend yourself.
This is different than the typical apache style patent grant, which instead would say "if you sue me over patents in apache licensed software x, you lose rights to software x" (IE it's limited to software, and limited to the thing you sued over)
2. It terminates if you challenge the validity of any facebook patent in any way.
So no shitty software patent busting!
DannyBee, I'm having a hard time envisioning what sort of scenario might trigger this, and what the repercussions might be. Any chance you could explain?
Assuming you mean the first part (the validity provision seems "obviously bad" to me), let's lay out some scenarios:
You make your important software dependent on this software. Congrats, facebook can now sue you with impunity because you can't afford to lose these patents.
Worse, the fact that they have given you a grant does not prevent them from suing you, and the second you counterclaim, you lose. Note also that the grant specifically does not cover "the Software in combination with any software or other technology provided by you or a third party." So if you take this stuff and run it in a pipeline, and facebook has a patent on running it in a pipeline, you don't get that patent and they can still sue you.
(Again, in the apache case, you'd only ever lose the patent grant if you sued facebook over the software in question).
Ignoring direct cases, facebook can also use this as leverage during acquisitions that use their software (Nice software, shame if you were to lose rights to it), etc.
There are potentially an infinite number of ways to use this kind of stuff.
Also note this kind of thing has been looked at in the past.
There is an entire discussion here:
from when v2 of apache license was being written, etc.
There are reasons the Apache grant has become pretty much the standard - most people and corporations find it a pretty good balance of various concerns (being able to defend yourself in patent lawsuits, etc).
What Facebook has done is entirely one-sided. It benefits Facebook only, and even then, it generally only helps them in situations where they want to sue people. None of this really helps defensively. If they wanted it for defense, they'd write it differently to cover defensive situations.
I have been rattling the clause jawns posted around in my head, and I cannot see this. I agree that the clause is onerous and I would not incorporate software that had such a clause into one of my products without a backup plan. I do not see how this gives Facebook the ability to sue anyone with impunity. The clause applies to alleging patent infringement BY Facebook or its subsidiaries (i.e., you are suing them) or if Facebook is specifically suing you for patent infringement. Clause section b only applies if your defense is based on invalidating a Facebook patent; saying, "We don't actually infringe that" does not trigger this clause.
Second, "saying, "We don't actually infringe that" does not trigger this clause."
This is false.
Such a claim is a claim that facebook's patent claim is unenforceable against you.
This falls directly into the "unenforceable" language.
Also note that you claim it requires lawsuits.
Actually, as worded, it does not.
In fact, it says "
The license granted hereunder will terminate, automatically and without notice, for anyone that makes any claim (including by filing any lawsuit, assertion or
other action) alleging".
It specifically says "assertion or other action". It does not require lawsuits.
So arguably, just by posting a blog post that says facebook's patent is invalid, you'd lose rights, because that is an assertion that a right in a patent of facebook's is invalid.
If it's not meant to cover this, it's not at all clear what the difference between "an assertion" and "a lawsuit" are supposed to be in the examples, or what "other action" would constitute.
Facebook sues me for stealing proprietary information after hiring one of their engineers. I have no patents. How do patents help me?
> This is false. Such a claim is a claim that facebook's patent claim is unenforceable against you. This falls directly into the "unenforceable" language.
It is not false. Claiming a patent is unenforceable is not the same as claiming something you are doing in a specific case is not covered by a patent. "Unenforceable" has a specific legal definition. The list of common actions that argue unenforceability: patent is invalid; inequitable conduct by patentee; delay in braining suit for infringement; patent misuse. Please explain how "our product doesn't infringe this patent" meets this definition.
> Also note that you claim it requires lawsuits. Actually, as worded, it does not.
I did not state that it requires lawsuits. You claimed the clause grants Facebook the ability to sue with impunity, and I was using the clauses to refute that statement in that context. I am well aware that the clause, as written, does not require lawsuits.
There is also a file with the industry-standard name LICENSE (https://github.com/facebook/fbcunn/blob/master/LICENSE), with a standard looking BSD license in it.
Surely somebody using it could claim that was the file that applied, and this other non-standard whimsical "PATENTS" file was irrelevant?
Or can people just bury random licenses deep inside copyrighted works, and expect them to apply?
All it does is grant rights, albeit flimsy ones that can be taken away in stupid circumstances. There's no real use arguing it doesn't count because then you're just saying you never had those right and are infringing in exactly the same way.
That sounds pretty chilling considering that could mean that anything any of your employees say about any other Facebook patent could wreck your business, if you choose to use Facebook code from Github.
I wonder what would happen if every company offered patented algorithms under these terms. Still wouldn't stop patent trolls, I'd guess.
(and the other provisions are not defensive, they don't require you sue facebook to lose patents)
(the entire rest of the ... is clause (a))