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Comment by jaredklewis | Hacker News Reader

I would patiently beg everyone to employ some basic reasoning.

Situation A: React is licensed under BSD + PATENTS. You sue Facebook for infringing your widget patent. Turns out Facebook has a patent for something in react. They revoke your grant and counter sue you for infringing that patent. Long legal battle ensues.

Situation A: React is licensed under just BSD. You sue Facebook for infringing your widget patent. Turns out Facebook has a patent for something in react. You never had a grant so Facebook counter sues you for infringing that patent. Long legal battle ensues.

Can someone coldly explain how anyone anywhere would be helped in any way by removing the patents file? Or is the BSD license the problem?

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People are worried about Situation C: React is licensed under BSD + PATENTS. You sue Facebook (or any corporate affiliate of theirs) for infringing on your widget patent. Facebook revokes your react license and counter sues you for copyright infringement.

The patents clause doesn't have anything to do with any patents on parts of React. It's a way for Facebook to make it so that anyone who wants to sue them for patent infringement can't use React.

Situation C is identical to situation A and B. You sue Facebook (or any affiliate) and Facebook counter sues you.

You get counter sued whether or not there is a PATENTS file.

No it is NOT identical. In situation A/C (React is licensed under BSD + PATENTS), you have explicitly agreed to have what is essentially your lawful use of React immediately revoked if you sue Facebook for patent infringement. So you sue Facebook, and whether or not your suit is of merit: You have to immediately stop using React. This actually prevents people who are dependent on React from suing Facebook for patent infringement, since they'd basically have to remove any dependency on React before suing. And this emboldens Facebook to infringe on the patents of entities who have a dependency on React, where it would be a major undertaking for the React-dependent organization to cease the use of react. Remember, Facebook is saying they have this in place to prevent merit-less legal battles. But the way they've set it up, it's not a question of whether your suit has merit or not. Facebook is saying "Sue us for patent infringement, and you immediately give up your use of React. Period." So the court rules in your favor over an unrelated patent infringement case? Congrats you won that case, but you've still given up your use of React, because you sued Facebook.

In situation B (React is licensed under just BSD), the patent rights necessary to use React are not written in explicit terms. You have made no explicit agreement to have your patent grant to use React revoked when you sue Facebook for patent infringement. In addition, without an explicit patent grant, a patent grant is implied with the license. You can at least continue to use React until the results of the court case.

> In situation A/C (React is licensed under BSD + PATENTS), you have explicitly agreed to have what is essentially your lawful use of React immediately revoked if you sue Facebook for patent infringement.

No you haven't. That is not what is written in the PATENTS file. The PATENTS gives you a patent grant to any react patent facebook may or may not have, that you can only lose if you sue facebook for patent infringement. Without the patents file, you don't have any grant to those patents.

> You have to immediately stop using React.

No you don't. Why do you think this is the case? There is nothing in the PATENTS file about this at all. All it says is that you lose the grant. If a court grants a preliminary injunction, then yes, you have to stop using it immediately, but guess what: assuming Facebook has some react patents, they can apply for a preliminary injunction against you whether or not the PATENTS file is in there. With just plain jane BSD they can also get a preliminary injunction.

> In addition, without an explicit patent grant, a patent grant is implied with the license.

It's totally misleading to state unsettled law as fact like this. It's wishful thinking. Not being a patent holder myself, I would like it to be true as much as anyone, but the fact is that until this stuff ends up in court, just assuming that a license to redistribute also implies a license to any patents is just a theory.

It's totally misleading for you to state unsettled law as fact like this. None of this has been tried in court so even what you have written carries a degree of speculation.

When Facebook explicitly includes a revocable patent grant (aka the PATENTS file), the argument of it being a "BSD license with no patent grant" when the patent grant is revoked is self-fulfilling. But if the PATENTS file had never existed, then what you have is a "BSD license with a debateably implicit patent grant", which has been the topic of debate long before React even existed, and has yet to be tried in court so could set a precedent, and is a way better bet for the consumer than a "BSD license with no patent grant because that patent grant has been explicitly granted and now revoked, no debate, period".

I read the possible revocation as applying to only the patent license, not to the BSD license which is in a separate file.

> The license granted hereunder will terminate, automatically and without notice, if you blah blah blah

"The license granted hereunder" refers to the patent license, not the copyright license.

> People are worried about Situation C: React is licensed under BSD + PATENTS. You sue Facebook (or any corporate affiliate of theirs) for infringing on your widget patent. Facebook revokes your react license and counter sues you for copyright infringement.

This cannot happen. This is not a thing. Nobody is legitimately worried about this; anyone who is needs to take a deep breath and stop being ridiculous. This has been clarified many times.

(Source: The plain language of the license, multiple independent lawyers who have commented on this, Facebook's official license FAQ, etc. The BSD license does not terminate when the patent grant does.)

The lawyer who wrote this piece [1], AND automattic's general counsel agree on this.

> Automaticc’s general counsel also agrees with my analysis of contractual and copyright liability in that the patent clause does not revoke the underlying license.

[1] https://medium.com/@dwalsh.sdlr/react-facebook-and-the-revok...

I personally am most worried about Facebook's attitude toward dissent on this issue. There's clearly an overwhelming number of developers who want Facebook to simply adopt an established open source license, preferably just BSD, with no extra conditions.

The fact that Facebook has continued to ignore this sentiment tells me that it's no longer a place where developers have much influence. I personally don't want to contribute to or use open source software from such an entity.

But that's just my personal opinion. It's a shame, because I've been really impressed and happy with the work Facebook has done in the area of programming languages (Flow, Hack, HHVM, etc.).

There's a school of thought that the BSD permission to "use" the software implies a patent grant. As an extension of this school of thought, React's PATENTS file could be seen at modifying that grant.

Right. This is the notion that BSD provides an "implicit" patent grant. Legal scholars are debating it, and there is no court precedent. ... but it is likely a more permissive grant than the explicit grant provided by BSD+PATENTS.

Has this never been tested in court in all the years the BSD license has been around (since 1988)?

Not sure why you think that Facebook can claim patents on BSD licensed software without specific identification. Your second situation can't occur.

The problem is that in the case you have a legitimate claim against Facebook they always have an 'out' if you have significant React use in your org.

Even if you have an illegitimate claim they have an out if you are dependent on React. Sue Facebook over patents, lose React. Period.

Not sure what you mean by this. This discussion is about the Apache license not the BSD license. So situation 2 does not exist.

Apache license includes an irrevocable patent grant.

If all situations are equal, why do they need the protection anyways? This is out of step with every other comparable library / framework / whatever.

What protection? The PATENTS takes rights away from Facebook, and gives rights to grantees. Facebook is in a stronger position without it. They added it to be nice.

Without patents file:

- Facebook can sue you for any reason, including react related patent infringement

- You have no patent grant for anything in react

- You can sue Facebook for anything, including patent infringement.

With patents file:

- Facebook can sue you for any reason, except for react related patent infringement

- you have a grant for any Facebook patents related to react

- You can sue Facebook for anything, including patent infringement of any kind. If you do sue them for patent related infringement, you lose the grant above (i.e. You are in same position as if there was no PATENTS file)

If the community is actively asking them to change it, then how is it being nice? At least offer a dual licensing scheme.

Wrong. Without patents file there is an implicit patent grant.

exactly what patents are covered by this 'implicit grant'?

I was wondering about this as I hadn't heard of it before. Found this http://en.swpat.org/wiki/Implicit_patent_licence .

It seems like yes it's true that there is an implicit grant, but it's not well established in case law.

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