Tangentially related: what would happen if you did sue Facebook for patent infringement, and continued to use this software?
Tangentially related: what would happen if you did sue Facebook for patent infringement, and continued to use this software?
You do not lose the right to use Prepack. You lose the right to use whatever patents Facebook may or may not have on the technologies underpinning Prepack, if any.
If you believe Facebook has a lot of strong patents relating to Prepack, the value of the patent grant is high, and the cost of losing it is high. If you do not believe Prepack is encumbered by Facebook patents, then the value of the grant is nil, and the cost of losing it is nil.
> Tangentially related: what would happen if you did sue Facebook for patent infringement, and continued to use this software?
In my view, almost certainly nothing, because I don't think they have any patents on the underlying tech. But if they did, then they'd be added into the ongoing patent fight, and would give Facebook marginally more leverage when negotiating the final settlement.
I rather suspect that the patents Facebook has on other non-Prepack things would be much more decisive.
Remember - without that patent grant you have no rights to any of Facebook's patents anyhow. With it, you do.
So the worst case is that you'd be in the same situation if you didn't have the grant.
Explicit is much much safer for users of software, legally speaking, because implicit grants have to be settled in court.
If you really want to go to court over it, and can afford it, then you may be right. Want to test that against Facebook? They reasoned (quite rightly) that it would be silly to suggest that.
Has any court ever ruled that a permissive license like BSD does not include a patent grant when it says "use in source and binary forms, with or without modification, are permitted"? Because that seems flat-out silly.
There is almost no case law that supports implicit patent grants and what little there is requires the patents be ones...
"that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put" -- HP vs O-Type Stencil (1997)
So, again, very limited. Very dangerous. Very very open to being sued and crushed economically.
This is exactly why FB's patent grant provides you more rights that you get without it. There is no ambiguity, no fussing over what patents may or may not apply and be covered by the case law. It's explicit and better for you.
Long story short: in many ways it's less safe to rely on implicit grants.
Yes, the grant is better than nothing, but also, the risk if the grant is removed seems minimal.
It's of course possible that they have (or will have) some that would be covered by an implicit grant - though you'd need to go to court to confirm that.
But it's quite possible that they could have many patents that cover non-substancial parts. Guess what? You're now in violation of those if you haven't already licensed them.
So, again, even in the best case the implicit grant still requires you to go to court to maybe get clear of some liability.
Explicit ones have you covered from the start. More rights for you, broader coverage for you.
"You have stored the software on electronic media and used that media as a doorstop, violating our access control patents by keeping the door open."
Hmm. Has that been filed yet?
I could totally see the point of a FOSS software project that implements a patented algorithm, where people work together to improve the thing but everyone who uses it still has to get a license from the patent-holder. (For a recently-top-of-mind example, Fraunhofer's MP3 decoding patent.)
Thus, it's not obvious that a FOSS license automatically implies patent release. Fraunhofer could have open-sourced some reference MP3 encoder themselves, without releasing the MP3 patents.
Software distributed under those terms would no longer adhere to OSI's definition of open source (I think it violates points 1, 3, and 6) nor the FSF's Free Software Definition (points 2 and 3).
It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact.
I would be amazed if something like this does not stand up in court. Read the BSD license — it's really relatively simple english.
Adding a huge pile of details about what exactly that means makes me rather nervous. I am not a lawyer, and I worry that somewhere in that huge pile of explicitness that there are consequences that I don't anticipate, and that don't match up with the broad simple language those explicit details replaced.
(This is why companies have legal teams.)
The justice system is like a computer. It has no common sense; it has no "Do What I Mean" button. You have to write things out in full explicitness, for it to do anything predictable/sensible at all.
And just like with explicitness in programming, explicitness in a contract doesn't translate to "more things that could go wrong"; it's instead fewer degrees of freedom. More things pinned down; fewer left to interpretation.
It ain't hard fact until a judge says it is, and even then it can be moved with a big enough lever. That that specificity reduces axes of freedom on which to have what you think is obvious be not obvious is why I upvoted you, because that's the super important part everybody ignores.
A good lawyer tries to phrase their contracts et al to expose the connotation of the relevant laws in the text, so that you don't need to read the laws, only the text. Sort of like explicitly including default parameter assignments to a function.
If you ask a lawyer what is best, they will likely recommend a professionally drafted license like the Apache License v2. Just as you may not understand every aspect of a doctor's diagnosis or prescription, it may not be feasible to understand all the relevant statutes and case law. But I think it makes more sense to defer to expertise advice than to bury one's head in the sand.
In all likelihood you don't fully understand contracts regardless of length because you're unaware of the entire legal environment they exist in. The reason contracts often have weird stilted phrases is that they have specific meanings established over decades if not centuries of legal battles over those semantics.
A good example for doing this right are the Creative Commons licenses: they come with a summary in plain English for humans and a full license text for the legal system.
These are questions that you should be asking because the name of the game is minimizing risk.
The sooner the software developers of the world realize that there are reasons that we hire lawyers for legal tasks just like we hire programmers for programming tasks, the better. The profound arrogance you are choosing to exhibit regarding complex professions you don't fully understand is one of the absolute worst things in tech.
However, even the people who DO think an implicit grant exists would mostly agree that the implicit grant is not sublicensable, which makes it a horrible mess and probably unusable.
An explicit grant is strongly preferable, IF people can agree on the terms. Facebook's terms are on the harsh side, but there's clear advantages to it existing.
They sort of have. A patent has to be a major and "dominant" part of the implicitly licensed tech for it to be granted.
Basically - all existing case law says that you get some rights from implicit grants but it's also far less than explicit ones like FB's
I personally think that patents have no place in contemporary society, but that's just, like, my opinion, man.
http://en.swpat.org/wiki/Patent_clauses_in_software_licences...
Amend that to Software Patents and... I'm basically with you. Generally I think they are useful as a concept but I think they've become a bloated mess.
That said, I think I broadly agree with you about software patents; one reason why is that they're the glitter of intellectual property.
If you buy an Apollo diamond or one of those magnets, the use, possession, modification, etc of those items are not covered by the patents on the diamond (AFAIK, IANAL). With software patents, it seems to be the case that the "final product" IS covered by the patents.
This seems like it makes the presence of two separate categories pretty damn clear.
If you know better, you might want to give an answer here:
https://law.stackexchange.com/questions/14337/q-about-conseq...
I could easily see a company 1) using something Facebook has created, like React, for a VR based UI; 2) patenting something related to their VR technology; 3) Oculus making the same kind of technology and not paying the company royalties/licensing its usage; and, 4) suing Oculus for patent infringement.
Of course it is within Facebook's right to make the patent clause as broad as it is, but I don't feel like it is fair that the company above would not be able to use React because Facebook infringed on a patent unrelated to React. It would be a lot nicer if Facebook either used an already existing license like Apache 2, or updated the patent clause to be more specific.
Again, keep in mind that in your example, the company still has a license to use React. What you're losing is your explicit grant of a license to the patents Facebook MAY have on the technology. But nobody has ever identified such a patent, and one of the core React devs is on record as saying he isn't aware of any either.
- Facebook says, "hey you can use this software, no copyright strings attached."
- Facebook says, "also, any patents we have to that software, here's a license. One stipulation, if you sue us for patent infringement, we revoke that license."
- Your hypothetical company, let's call it Acme, seeing the value of getting to use great software, for free, with no copyright or patent royalties, takes Facebook up on their charitable offer.
- Acme then, sues Facebook for patent infringement.
- As per the license, Facebook revokes their free patent license they gave to Acme.
And somehow the victim in this story is Acme? That's pretty rich.
Here's an idea: if part of your strategy as a company is using your patents to sue people, maybe don't expect those other companies to give you their patents for free?
You assume that I am making Acme out to be a victim, which isn't true. I'm arguing that Facebook should give a patent license that's more specific to the software they are licensing, e.g. React, Prepack, rather than a blanket license for any patents they ever get. For example, read the Apache 2 license, which is my preference for licenses that need a patent grant, as it's much more specific. You also assume that the strategy of getting patents is to use them to sue, which isn't true. You can get patents without suing, and the likely only reason you'd sue is if a company is willfully infringing upon a patent (e.g. won't license the patent).
I never imagined, then (being late 90s) that a brochureware dot com might require liability boxing legally, but I never imagined whole libraries like React being adopted so wholesale, so seemingly blindly (if not blindly, why has nobody posted the outcome of due diligence? A blog topic I'd like the attention from.) and so trivially as, yes, our brochureware site just could get used against us. Our early clients expressed concern, first: we had to pass their IP hygiene checks. We adopted those, right away. Such stringencies are why many entities I've worked with, have no or empty websites, but old old registration dates on their dot coms...
* edit, missing dependant clause I guess was strongly implied, but it's about when we first saw frivolous, vexatious patent suits aiming at the front doors of random web presences condition there might be money and weak legal... I mistakenly imagined that to be spurious, not it would develop into a psedo- legitimate"industry".
A moral thought: Maybe if we sold fewer reinvented wheels, there might be less temptation for parasitic behaviour to organize itself, like patent trolling has done? I can certainly plead the fifth to wheel reinvention, most days I write code ... (edit last) my meaning behind this is that I frequently have found highly objectionable behaviour being justified by the calling out of perceived comparable poor behaviour. Now I don't go sp far to condemn e.g. the js library crowd or any of anything for that matter, it's too young to blame yet. But with the first generation who grew up exposed to computing comparable to modernity, now maturing, its natural the industry will mature also. I see the brake on maturation more as lots of great new tools, than moral or human lacking. But self appointed grown ups trying to bully tax us, might be the natural parasitic compliment to this rich novel ecosystem. We don't need no random adults to appoint to combat this, we just need to question and talk about what is sane to accept. There's too much over reaching paternalism propping up big business assumptions, right now.