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Comment by wyattk | Hacker News Reader

Why does Facebook not use something like an MIT license? I am honestly curious.

The MIT license doesn't change anything in this case, because the MIT license doesn't have a patent grant.

This GraphQL situation is different and, arguably, somewhat worse than the ReactJS BSD+Patent license issue.

The problem here is the GraphQL specification doesn't have a patent grant (unlike ReactJS, which does, but people don't like the terms of the grant). And Facebook have filed a patent for GraphQL (https://www.google.com/patents/US9646028) that has some quite broad language.

Due to the patent, and the lack of a patent grant, most GraphQL users likely infringe on Facebook's patents.

Please read: https://medium.com/@dwalsh.sdlr/using-graphql-why-facebook-n...

If you publish something under a MIT license very early, can you still apply for a patent after its practically public domain? I'd say no, but IANAL.

Some lawyers argue that if you publish software under an open source license without an explicit patent grant, that their is an implicit grant with it. As far as I know, this has not been tested in court, but it seems reasonable to me, (not as lawyer).

Sure you can apply. And you might very well get it too. They don't have time to check much at the patent office, mostly standarized IP databases (probably not including your code). And if you get it, it becomes the burden of the others to prove the patent invalid. Bad patents are common, and litigation so expensive that they are a real problem to whoever is affected by them.

>Please read: https://medium.com/@dwalsh.sdlr/using-graphql-why-facebook-n....

That post has text of the patents in question. Please warn if you're linking to text of patents so people don't expose themselves to triple damages.

The topic of willful infringement, while unpleasant, is a real concern for many developers and companies. I don't believe the downvotes are justified for a valid concern.

I am not a lawyer, but MIT and BSD are thought to have implicit patent grants.[1] It would be completely absurd for a company to argue that they give the public the right to use their software, but "just kidding -- we were secretly withholding the rights to the patents all along so that we could sue you for using our software!" An apparent problem with Facebook's PATENTS file is that it explicitly withdraw the patent license if Facebook decides to infringe on your patents and you speak up about it.

I'm not sure if the author of that article is partially trolling in the attempt to get Facebook's patents terms applied to the entire spec.

The best solution would be to abolish software patents completely.

I think this entire PATENTS situation with Facebook is a good reason why people should prefer Free software that is created and managed by individual developers and independent foundations over "open source" software produced by large companies with legal teams and dubious agendas.

[1] http://en.swpat.org/wiki/Patent_clauses_in_software_licences...

Good point. Wonder how much more frequently we're going to start seeing issues like this.

You could create just as much fear, uncertainty and doubt by pointing to the lack of clarity around the notion of an implicit patent grant.

I don't think that they are the same. If the PATENTS file usage becomes widespread, it would probably impact small startups without legal teams more than anything regarding implicit patent grants would.

https://medium.com/@ji/the-react-license-for-founders-and-ct...

TL;DR - In 2012, Yahoo sued Facebook over 10 patents, "general sentiment in the industry was that the lawsuit against Facebook was without merit; some said Yahoo was a patent troll." Facebook spent a lot of money acquiring a patent warchest to be used defensively against patent suits in the future. Yahoo then drops the patent infringement case.

"The key thing to understand is that Facebook used and invested in patents as an important way to defend itself."

Facebook asserts that anyone can use these open source libraries with a patent use grant. However, if that company then sues Facebook over patent infringement, Facebook reserves the right to revoke all patent grants so they can use their own patents in a countersuit.

I can see how it makes sense for Facebook, but still a toxic effect on the actual "open source" status of React et al.

You use React or GraphQL on any project at your company, and suddenly Facebook gets free reign to use ANY IP your company claims?

That's the definition of toxic.

No. How did you manage to get that interpretation?

Actually, that's not a completely unreasonable interpretation. You are then unable to sue FB over patents, so FB could indeed just use any of your IP.

First of all, the whole thing is limited to patents, which are a small part of the IP of most IT companies. If Microsoft uses GraphQL, Facebook can't freely pirate Windows. Second of all, you can still sue FB over patents, you just have to stop using things they are providing free of charge first. Also, there is an exception if FB sues you first. It seems fairly clear that the intent is to avoid litigation over patents, especially software patents, which many people think are a bad thing.

Wouldn't Apache 2.0 provide the same protection for Facebook?

No. Apache 2.0 indemnifies you only in relation to the patents held by contributors to that project.

In more concrete terms, if you see some project is licensed under Apache 2.0, then you can still be sued for using it, because while you may have a guarantee that its contributors won't sue you, it doesn't make anybody else's patents go away.

In slightly more concrete terms than that, if Project X causes Facebook to be sued by Corp Y because Facebook is using that project, then Facebook has no protection if it is not a Corp Y project nor have they ever contributed to it.

In real life, Corp Y is Yahoo, who sued Facebook several years ago on a bunch of patent-related matters. Facebook then went on a tear building up a war chest and crafting the PATENTS text so that it could never happen again.

That's a great response, and it annoys me you're being downvoted

Does "stop using patent infringing software" really protect you from damages? Isn't the fact that you infringed at some point enough?

No, because your patent grant doesn't terminate until you file suit, so if you stop using the patents before you sue, you aren't infringing.

> there is an exception if fb sues you first.

So if fb just uses something patented by my company in one of their products, just uses it without my company's permission, but doesn't sue, what is my company's recourse?

What is my company's leverage or incentive to get them to pay my company for a license?

You assume an intent but the intent is unclear here. React is an incredibly attractive technical product. As a web dev at my company I really want to use it, but had I not realized its strange underhanded bidirectional patent grant and evangelized it I could have boxed my company into a corner, forcing it to decide to sacrifice our React web infrastructure or defend our patents.

Spreading misinformation about the danger only serves to undermine the OSS community's response.

That's the direct consequence of Facebook's patent license.

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