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"MIT and BSD licenses don't have any patent grants, unlike the Apache 2.0 license. If you use MIT/BSD open source software, and some functionality of that software is patented by the author, you could be sued for patent infringement. " Every single lawyer i've ever spoken to strongly believes implied licenses will protect you very well here. Like, among us open source lawyers, it's pretty much the one thing people agree on.

"If you use software licensed under Facebook's BSD + Patents license, and the author of the software (Facebook) has patented technology in the software (which AFAIK they don't), the author CANNOT sue you."

This is just flat out false, and i'm not sure why you believe this. The termination is broader than the grant. The grant is for patents in a given piece of software, the termination crosses all software.

Concretely: if you use react, and they sue you over patents in notreact, and you countersue, you do not lose your react patent license. They are still welcome to sue you over notreact, there is nothing in this license that will prevent that from happening. It only gave you patent rights to react.

(It also says that if you sue them over notreact, you will lose all patent licenses in all software that use this license, which is why the termination is broader than the grant).

"The BSD + Patents license is strictly better than the regular BSD/MIT licenses. You lose no rights, you may gain some patent protection."

This is also an incorrect legal statement.

Once their is an explicit grant, any implicit grant you would have gotten is extinguished. In this case, the terms of the implied grant were much better for people than the terms of the explicit one. So you are, in fact, losing something

> Once their is an explicit grant, any implicit grant you would have gotten is extinguished.

The BSD license grants explicit rights to use the software, thereby granting implicit rights to use the patents in the software while using the software as it is intended to be used.

The sentence "redistribution and use in source and binary forms, with or without modification, are permitted" doesn't go away because there is an "additional grant of patent rights".

Actually, it does! Courts will not find implied licenses when there is an explicit one. That's the whole definition of implied vs explicit!

The problem is that your MIT licensed open source library is not guaranteed to not be in violation of any software patents that may exist in the wild. If Company A publishes an open source library that happens to violate Company B's patents...then Company A's MIT license is not going to protect you against Company B's patent.

Nor would Facebook's patent grant protect you if React were found to violate someone else's patents. That sort of scenario is no different for either licence.

> Once their is an explicit grant, any implicit grant you would have gotten is extinguished.

Citation needed. And if you aren't planning to sue over software patents, then the author is clearly correct that this is strictly better than BSD/MIT alone.

> sue over software patents

The grant isn't specifically about software patents, it's about all patents.

Fair enough.

"Citation needed."

Seriously? This is basic IP law 101. No license can be implied if there is an explicit license.

I actually started gathering cite lists for you like I normally do, but instead, i'm not going to in this case. If you really want to argue this point, please go to google scholar and spend the 2 minutes it will take to pull up 100 cases on this.

I don't feel it's fair to argue about a thing without taking the very small amount of time to familiarize yourself with it.

If you find cases that say otherwise, awesome, let's talk about it!

Otherwise, this is like arguing about baseball and asking someone to cite rules because you want to argue that swinging at the ball and missing isn't a strike.

"then the author is clearly correct that this is strictly better than BSD/MIT alone."

They actually are not, as the scope of the implied license is much broader than the scope of the explicit grant here.

Edit: afaik, implicit patent license for free software licenses are unproven in court. It's an interesting idea, and I actually hope it's the case that everyone is getting an implied patent license that will hold up in court. Thanks for the information, I wish I had incorporated it in my original comment.

I've read it, and I'm pretty sure it says that if you initiate a patent lawsuit against Facebook, you lose the license to use React at all. It doesn't revert to BSD. (EDIT: Apparently that's wrong although the license could certainly be more clear about it.)

If React doesn't implement any of their patents, the patent clause offers nothing extra. If it does, it would be damned nice to know which one(s). Do other libraries (other virtual DOMs, perhaps) infringe?

No, you lose the patent license, not the copyright license.

From Facebook's blog post:

> The patent grant says that if you're going to use the software we've released under it, you lose the patent license from us if you sue us for patent infringement.

https://code.facebook.com/posts/112130496157735/explaining-r...

Which one has more value? A file included in the repo, written in legalese, on which Every single source code file's copyright headers point to (and the README file as well), or an ambigous blog post?

Reading the file in its current form (https://github.com/facebook/react/blob/b8ba8c83f318b84e42933...), You lose the license to make, have made, use, sell, offer to sell, import, and otherwise transfer the [React] Software.

You lose the license granted in the PATENTS file, but you might not lose the license granted in the LICENSE file. (IANAL, so no idea whether that's true.)

My reading must be off, then. Is "under any Necessary Claims" the magic phrase?

Yeah, it is defined at the bottom of the file:

> A "Necessary Claim" is a claim of a patent owned by Facebook that is necessarily infringed by the Software standing alone.

So when they say "license under any Necessary Claims" they are granting a patent license, the copyright license in the LICENSE file is separate.

The FAQ link provided by silentstreet makes it very clear:

> Does termination of the additional patent grant in the Facebook BSD+Patents license cause the copyright license to also terminate? > > No.

https://code.facebook.com/pages/850928938376556

Does the additional patent grant in the Facebook BSD+Patents license terminate if I create a competing product?

No.

Does the additional patent grant in the Facebook BSD+Patents license terminate if I sue Facebook for something other than patent infringement?

No.

Does the additional patent grant in the Facebook BSD+Patents license terminate if Facebook sues me for patent infringement first, and then I respond with a patent counterclaim against Facebook?

No, unless your patent counterclaim is related to Facebook's software licensed under the Facebook BSD+Patents license.

Does termination of the additional patent grant in the Facebook BSD+Patents license cause the copyright license to also terminate?

No.

From: https://code.facebook.com/pages/850928938376556

https://code.facebook.com/license-faq which they published a year or so ago explicitly says you keep the BSD license.

"Does termination of the additional patent grant in the Facebook BSD+Patents license cause the copyright license to also terminate?"

"No."

Above from bottom of page to be clear to agree!

It's deeper than that.

Say you are a company A, and have product P that uses react.

You find out that company B infringed on a patent in your other product Q.

You sue B.

It turns out B is owned by FB.

Your product P is in trouble.

"If you are OK with using MIT or BSD licensed software you should be OK with using Facebook's BSD + Patents software." (From GP)

I.e. patent grant nullifies, and you are left with a BSD only license.

The main BSD license file says plainly that Facebook grants you the right to use the software. Nowhere does it say that it is merely a grant of copyrights. While the Facebook Additional Grant of Patent Rights purports to be purely additive, its mere existence changes how I would interpret the scope of that main license file. As such, I find the meaning and implications of Facebook's contract to be unclear. I would not want to depend on it, personally.

The feeling is a bit like stepping into a restaurant that offers lead-free burgers for only $0.99 extra. Theoretically, declining the upcharge is no different than eating anywhere else. Yet...

I am not a lawyer. This is not legal advice.

Because you can't just rewrite it in another framework if such a totally contrived case arrive?

The way I'm reading some related discussions, it seems their main problem is being suddenly open to patent lawsuit.

> Now if you turn around and use the author for patent infringement for something else, you lose the patent grant that came with the software, and you are back to a normal plain old BSD license.

> The BSD + Patents license is strictly better than the regular BSD/MIT licenses. You lose no rights, you may gain some patent protection.

Could you provide a citation backing up your claims?

if you read the patent grant for yourself:

https://github.com/facebook/react/blob/master/PATENTS

There's no mention of any patent grant coming with the software

>> "The license granted hereunder will terminate"

"The license" here is the one defined as:

>> Facebook, Inc. ("Facebook") hereby grants to each recipient of the Software ("you") a perpetual, worldwide, royalty-free, non-exclusive, irrevocable (subject to the termination provision below) license under any Necessary Claims, to make, have made, use, sell, offer to sell, import, and otherwise transfer the Software

and the "Sofware" here is the one defined as :

>> "Software" means the React software distributed by Facebook, Inc.

You left out the definition of "Necessary Claims":

> > A "Necessary Claim" is a claim of a patent owned by Facebook that is necessarily infringed by the Software standing alone.

Ok I see. But if you loose the license to any of those patents, you are infringing those patents by merely using React, aren't you?

I understand the followup question other people have now: What are those patents?

They have implicit patent grants while Facebook's does not.

http://en.swpat.org/wiki/Implicit_patent_licence

I don't see how that changes anything. If you sue Facebook you lose the explicit patent grant, but you are still left with a BSD license that allows "redistribution and use in source and binary forms", so you still have the implicit patent grant.

This doesn't work if there's an explicit grant. You can't pretend the PATENTS file isn't there.

I don't do any webdev, so I have no horse in this race, but I find it plausible that some developers would be more worried about Facebook infringing their patents than the respective organizations that develop Ruby, Rails, and FreeBSD.

> Now if you turn around and use the author for patent infringement for something else, you lose the patent grant that came with the software, and you are back to a normal plain old BSD license.

I see no reason to assume that it reverts "back to a normal plain old BSD license" in such a case.

The article linked by Stallman's response that this is a nonfree license doesn't make that assumption, either:

https://lists.gnu.org/archive/html/directory-discuss/2017-01...

> Now if you turn around and use the author for patent infringement for something else, you lose the patent grant that came with the software, and you are back to a normal plain old BSD license.

Um, no. Let's say you own patent A and Facebook has granted you rights to patents B and C. Then let's say Facebook infringes your patent A and you sue them. You lose the license to use patents B and C. That's what the PATENTS file says. Read it. What it doesn't say is because Facebook is publicly traded, it has a fiduciary duty to shareholders to defend all of its intellectual property so if you continue using anything covered by a Facebook PATENTS grant, you better be prepared to be sued for patent infringement. There is no implicit patent grant in the BSD license. Nothing in the BSD license shields the user of BSD-licensed software from patent litigation brought by any party.

From a lawyer: https://www.elcaminolegal.com/single-post/2016/10/04/Faceboo... "True, the BSD License does not explicitly state that the licensee receives the right to use the licensed software under the licensor’s patents.* But I’ve never heard any lawyer postulate that that document does not grant a license to fully exploit the licensed software under all of the licensor’s intellectual property. Anyone who pushes that view is thinking too hard."

The PATENTS file doesn't explicitly state "litigants may continue to use the IP under the BSD license". What it does explicitly say is "litigants lose the patent rights", which in essence serves to revoke the BSD license. Can't have it both ways.

The problem is that the descision to use react is not longer a descision for the developers in an organisation. It's now a descision for the legal team. And thats not good.

This is the situation I now find myself in. The next few months will be spent removing react and immutable from the project I'm working on because th legal department say so.

This is quite frankly, bullshit.

Have you looked into preact? For most projects, it's just a few lines in webpack. Immutable js is different, but shouldn't be that much work.

Yeah. And found it difficult to work with. The DOM seems to disconnect from the VDOM leading to oprhaned elements hanging around and no way to rectify it. Inferno is probably what we'll go with. But either way, it's a massive and undersireable compromise.

That's how far the framework war has come. FUD about licensing when they can't win with technical finesse anymore.

That is my sense as well.