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Ask HN: Is it safe to use Facebook's open source projects?

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Re: Ask HN: Is it safe to use Facebook's open source projects?

#41

Post by DannyBee »

lmm wrote: post #8

There is no way to be safe from patents. Anyone could have them, they don't have to declare them, and they're written in deliberately obtuse ways so that you have no way of finding relevant patents before you're sued for infringing them (you don't have to have copied, or even be aware of, any patented thing to violate a patent). It's just a hazard of the software industry. The BSD license says nothing about patents,…

"The BSD license says nothing about patents, so this project is in some sense safer than a "normal" BSD-licensed project (but not an Apache, EPL or GPLv3-licensed project). "

As I've mentioned in another common, this is both false and a common misunderstanding, because most engineers are not familiar with implied patent licenses.

BSD normally carries one. So you do in fact, get a implied grant. By doing this you don't, you only get the explicit grant. The implied grant is normally not revokable unless the underlying BSD terms are violated, whereas the explicit grant is revokable for other reasons.

The reason people use explicit patent grants is to avoid getting into some unsettled law. Particularly, the sublicensability of implied patent licenses is not clear. The TL;DR of this is "the answer is clear if you get the software directly from person owning the patents. If you get it through someone else, like say, a linux distribution, it's not clear what happens". The related doctrine of "patent exhaustion" that plays into this is also not settled, and currently the subject of a Supreme Court cert petition by Cisco.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#42

Post by guscost »

matthewmacleod wrote: post #19
SixSigma wrote: post #13

No. The license has a chilling clause that says if you ever suggest that any Facebook patent might be invalid, your license to use their code is automatically revoked. And in corporate world, that means any comment of any of your employees in an official capacity. Edit downvotes, well maybe the text of the clause will help > The license granted hereunder will terminate, automatically and without notice, for anyone th…

…if you ever suggest that any Facebook patent might be invalid, your license to use their code is automatically revoked. This is not correct — your license to use any patent of Facebook's that covers the software is revoked. You are still not infringing copyright on the software by using it, but you will no longer be protected by Facebook's patent grant, which is in addition to your license to use the software. This…

Are you saying that they could not come after you for simply using React (even if you were to dispute the relevant patents in court), or just that there is no evidence that they could?

Re: Ask HN: Is it safe to use Facebook's open source projects?

#43

Post by btilly »

sanxiyn wrote: post #36
throwawaykf05 wrote: post #29

Earlier quoted context omitted.

Actually, if you RTFClaims (which is the first thing you should read), they patented asking for payment for using emoji to respond to content. Which is ridiculous from a business perspective as well.

What is ridiculous about it? LINE is earning millions of dollars from exactly that. On the other hand, I think the patent is invalid because LINE predates this like a year or so.

Food for thought. For reasons that SixSigma brought up in another comment, both you and your employer have just lost your rights to the patent grant that would let you safely use Facebook's open source contributions.

That's pretty bad.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#44

Post by spacemanmatt »

richardfontana wrote: post #30
pretaliationc wrote: post #20

Pardon my ignorance, but isn't this just equivalent to Apache's patent retaliation clause?[0][1] [0] http://en.swpat.org/wiki/Patent_clauses_in_software_licences... [1] http://en.wikipedia.org/wiki/Software_patents_and_free_softw...

The events that trigger Apache License 2.0 patent termination are much narrower: "If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date…

Yeah, Apache is a little more giving in actual terms, but it's a similar deal.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#45

Post by matthewmacleod »

guscost wrote: post #42
matthewmacleod wrote: post #19

Earlier quoted context omitted.

…if you ever suggest that any Facebook patent might be invalid, your license to use their code is automatically revoked. This is not correct — your license to use any patent of Facebook's that covers the software is revoked. You are still not infringing copyright on the software by using it, but you will no longer be protected by Facebook's patent grant, which is in addition to your license to use the software. This…

Are you saying that they could not come after you for simply using React (even if you were to dispute the relevant patents in court), or just that there is no evidence that they could?

Facebook cannot 'come after you' for using React if you have not accused them of patent infringement.

They can 'come after you' iff you have accused them of that, and you are using their software in such a way that a parent of theirs is violated.

It's pretty straightforward:

- Facebook has released some open source software. In the case of React, it's under the BSD license.

- You can use this software however you want, in accordance with the license.

- In addition to granting you a license to use the software, Facebook has granted you a license to any patents they own that cover the software.

- There is no enumeration or claim that any patents do cover the software.

- Your license to use any hypothetical patent that does cover the software will be revoked if you make a claim—legal or otherwise—that Facebook has infringed any patent.

- At that point, you will no longer have a license to use any patent that covers the software.

- If you are subsequently using the software in a way that infringes one of their patents, Facebook would legitimately be able to claim patent infringement.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#46

Post by matthewmacleod »

DannyBee wrote: post #40
jonas21 wrote: post #39

Facebook is granting you additional rights on top of the BSD license. In the worst case, where you do something that causes the patent rights to be revoked, you're still left with the same rights you have under the BSD license. This is unambiguously safer to use than if they had released it under a vanilla BSD license. As for why Facebook did this, they're most likely trying to give away additional rights while still…

"Facebook is granting you additional rights on top of the BSD license. In the worst case, where you do something that causes the patent rights to be revoked, you're still left with the same rights you have under the BSD license. This is unambiguously safer to use than if they had released it under a vanilla BSD license. As for why Facebook did this, they're most likely trying to give away additional rights while stil…

This is actually well settled law.

I'm not sure it is, and I'd argue the situation is unclear. I'd be keen to see any examples though – it would be awesome if there was something to fall back on.

All I can find is evidence that it would be at best very risky to rely on an implied patent grant.

For example, it's considered unclear enough that the ClearBSD license was explicitly created to clarify that it doesn't offer patent grants - http://directory.fsf.org/wiki/License:ClearBSD

Even more damning:

In the absence of an explicit patent grant, but considering the word use in the license, can we assume that the BSD license impliedly grants enough of whatever patent rights the Univer- sity of California then owned that a licensee may use the soft- ware as it was originally distributed by the University? Most licensees under the BSD assume it does on the theory that oth- erwise the copyright license would be of no value. What good, they say, is software that can be copied but not used?

Such a conclusion is not based on the law of licenses. Indeed, a bare license of copyright need not include a bare license of patent at all. It is only if the BSD is viewed as a contract that we can introduce contract law principles such as reliance or reasonable expectations of the parties. If software is licensed under the BSD without forming a contract between licensor and licensee, the extent of any patent grant is at best ambiguous.

As to whether an implied grant of patent rights extends to versions of the software with modifications, that’s an even more complicated question. The BSD license is silent about a patent license for derivative works. So if a licensee improves the origi- nal Berkeley Software Distribution in a way that infringes a patent owned by the University of California, there is no easy way of knowing whether an implied BSD patent license includes a patent license for that improvement.

Since courts are likely to construe implied grants of license narrowly, a licensee should consider obtaining separately from the licensor an explicit grant of patent rights that might be needed for modified versions of BSD-licensed software.

  http://rosenlaw.com/wp-content/uploads/Academic-Licenses.pdf

Re: Ask HN: Is it safe to use Facebook's open source projects?

#47

Post by nanidin »

btilly wrote: post #43
sanxiyn wrote: post #36

Earlier quoted context omitted.

What is ridiculous about it? LINE is earning millions of dollars from exactly that. On the other hand, I think the patent is invalid because LINE predates this like a year or so.

Food for thought. For reasons that SixSigma brought up in another comment, both you and your employer have just lost your rights to the patent grant that would let you safely use Facebook's open source contributions. That's pretty bad.

I think the word 'claim' is used a little ambiguously, but given how it is used in the rest of the patent declaration, I don't think the intent of Facebook is to stop you from saying anything about infringement, rather it is to stop you from filing a claim in court or with the patent office.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#49

Post by btilly »

nanidin wrote: post #47
btilly wrote: post #43

Earlier quoted context omitted.

Food for thought. For reasons that SixSigma brought up in another comment, both you and your employer have just lost your rights to the patent grant that would let you safely use Facebook's open source contributions. That's pretty bad.

I think the word 'claim' is used a little ambiguously, but given how it is used in the rest of the patent declaration, I don't think the intent of Facebook is to stop you from saying anything about infringement, rather it is to stop you from filing a claim in court or with the patent office.

Don't worry about intent, worry about what they actually say. They have smart lawyers, and wouldn't say it if they didn't mean it.

They say you lose the license if you make a claim "...that any right in any patent claim of Facebook is invalid or unenforceable." They also helpfully indicate what a claim means, and making an assertion counts.

Now why would they do this? My guess is that they wanted to have a legal tool that they could use to provide a chilling effect on any third parties who might volunteer information that is useful to someone filing a lawsuit against them. Which, if you are a lawyer, might seem like a good response to the demonstrated ability of groups like groklaw to crowdsource legal research. And if they were in such a lawsuit, that comment is exactly what Facebook would not want to see.

But there is no need to speculate. Their patent grant is quite clear, and the comment I pointed at is in violation.

Re: Ask HN: Is it safe to use Facebook's open source projects?

#50

Post by nostrademons »

fncypants wrote: post #38
stupidcar wrote: post #11

Earlier quoted context omitted.

Yeah, this discussion points out an important point that it's easy to miss if you scan Facebook's patent grant: The license Facebook grants you is invalidated by any action that even alleges that any of Facebook's patents is invalid. E.g. if you so much as Tweet that one of Facebook's patents, even one entirely unrelated to React, is invalid, you've lost your license. Compare this with the patent grant in the Apache…

No. In context it refers to "filing any ... action." Lawsuits and similar procedures in other legal forums are often called actions. Think the movie called A Civil Action staring John Travolta about a civil lawsuit. The concern here is not how it is triggered (it must be by a lawsuit or something similar) but rather the balance of power it provides if you get into a war with Facebook, since you cannot undo having use…

In DannyBee's original post, he says that the key words there are "for anyone that makes any claim (including by filing any lawsuit, assertion or other action)", and that by including the words for "assertion or other action", it encompasses claims outside of a court of law. A post on Hacker News or a tweet on Twitter is an assertion, and so would fall under this. Otherwise why include that language?

IANAL, but he is, and this is his area of expertise (IIRC he runs the open-source program for Google).

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