Hacker News Reader

Comment by halfteatree | Hacker News Reader

I don't understand this: how are you not strictly better off with the patent grant? This whole fiasco seems to be nothing but FUD. See https://news.ycombinator.com/item?id=14780979

tl;dr:

    License with no patent grant: Facebook can sue you for infringing patents, 
    even if you are using a clone!
    License with patent grant: Facebook cannot sue you for infringing patents, 
    unless you do it first.

View on HN

There are two camps - those who believe that an open source license implicitly provides patent grants and those who believe an open source license does not allow patent use.

Until such a thing is tested in court (in each country) both ideas have merit.

The patent grant is also worded a bit unclearly - implying that if you sue facebook you will lose the copyright, not only the patent right, to use React.

Even though the lawyers clarified it in FAQ and other places, the wording is still what it is.

> The patent grant is also worded a bit unclearly

It's not unclear at all. Here's the file. Note that it's separate from the LICENSE file that grants a copyright license.

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

> The license granted hereunder will terminate, automatically and without notice, ...

There is no reasonable logical or legal context in which "hereunder" refers to anything except the PATENTS file itself. What lawyers have had to clarify is what should never have been an issue because it was already clear. They're not the ones muddying the waters. Opponents are. We should be asking who is so determined to put this meme out there, and why.

The PATENTS file refers to all patents granted to you by Facebook in any project, not just in React (or any of the other files containing the PATENTS file). I think it's scoped a lot more broadly than you seem to imply.

It refers to all patents as potential triggers, not as potential consequences, and that still doesn't allow a patent license to nullify a separate copyright license. I think it's scoped a lot more narrowly than you are trying to imply. I've provided detailed reasoning for my position. Feel free to reciprocate.

Suing Facebook for an unrelated patent will make any software you use that may only work with ANY Facebook patented works useless. It doesn't discriminate to this project. They retain first strike however, so all the people saying this is great because patent litigation is bad, Facebook still has first-strike here.

Also, the copyright license isn't useful unless you have complete knowledge of Facebook's patent portfolio and are certain that without a patent grant (implicit/explicit) you can still use the software at all. This goes for Facebook as well as immutable, graphql etc.

> ... 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 ...

This amounts to a sprawling amount of individuals/orgs that can make you rewrite everything.

You're still assuming, contrary to all fact and common sense, that either the copyright license or the implicit patent license are affected in any way by what happens to the explicit patent license. I've explained elsewhere in this thread why that's not true. As long as you continue to base your argument on that assumption, without even acknowledging (let alone addressing) explanations to the contrary, that argument is a waste of everyone's time.

> You're still assuming, contrary to all fact and common sense, that either the copyright license or the implicit patent license are affected in any way by what happens to the explicit patent license.

Why would it be unreasonable to assume that the explicit clause in a contract exists to override the implicit clause? Isn't that kind of the point of explicitly enumerating cases? Where, elsewhere in this thread, do you explain this?

And your aggressive tone is unexpected.

Edit: Also, I didn't say the copyright grant was affected, but if you don't have a grant to use a patent that the software flexes.... ? Being concerned vs. assuming flowers seems safer in untested legal waters.

> Isn't that kind of the point of explicitly enumerating cases?

No. Explicit enumeration is also done to address things that are missing or ambiguous. If the intent is to replace or negate something that would otherwise be true, that's usually explicit too. "Superseding all other agreements, express or implied..." or some such.

> Where, elsewhere in this thread, do you explain this?

Mostly in https://news.ycombinator.com/item?id=15257004 and its descendants. Other examples are not hard to find from my profile (two clicks).

> And your aggressive tone is unexpected.

When I'm faced with passive-aggressive behavior, such as persistently making untrue claims even after they've been challenged or even flat-out refuted, I get a bit active-aggressive.

> Being concerned vs. assuming flowers seems safer in untested legal waters.

Then you should apply that concern to all BSD-licensed software. Ditto for MIT license, and others that come with no explicit patent permission at all. All they have is the implicit permission necessary to support the copyright license (which is otherwise separate). The case for that is strong, but it's completely independent of the explicit license. Why not have both? Why take the risk of relying on one alone?

> those who believe that an open source license implicitly provides patent grants and those who believe an open source license does not allow patent use

There's a third camp: people who think this is a false dichotomy that necessarily requires those endorsing it to have an oversimplified understanding of IP law.

The patent grant isn't the problem it's the termination on any action against Facebook. Hence if Facebook infringes on patents you own you can't take action against them if you are using React.

I think it’s quite fair to say “don’t sue us if you want to use our stuff for free”.

It's not "termination on any action against Facebook", the termination is only for:

1. filing a patent infringement against Facebook (for anything, related or unrelated to React)

2. filing a patent infringement counterclaim against Facebook for patents related to React (after Facebook have first filed a patent infringement claim against you for patents on anything)

3. filing a patent infringement against anyone for patents related to React

[edit]

> if Facebook infringes on patents you own you can't take action against them if you are using React.

You can take action against them, you just don't have a patent grant once you do.

> You can take action against them, you just don't have a patent grant once you do.

Which opens you up to being countered-sued right? It seems that this leaves Facebook to freely infringe on any patents of React users without consequence.

Only if they have a patent on [edit: something in] React, or on anything else that you use (regardless of it's from Facebook)

[edit2]

Also, patent lawsuits are costly. If you're going to start one against Facebook the cost of switching away from React first would be negligible.

Not without consequence. You as a company will have to determine which is more of a problem: Facebook using your patents, or you using Facebook's patents.

As I replied above, this takes you to the same place without a patent grant.

>you can't take action against them if you are using React.

Umm, no. You can still sue them, but the patent grant is nullified, which takes you back to the place where no such patent grant exists.

Hence, you're strictly better off with the grant.

Reply on news.ycombinator.com