6 ms·

False: an implicit patent grant means that by open sourcing a piece of software you imply that people can, you know, use it.

eridius 9y ago
AIUI this issue still hasn't been settled to everybody's satisfaction.
abritinthebay 9y ago
And the weakness, legally speaking, of implicit patent grants was one major reason why GPL moved from v2 to v3. Explicit is much much safer for users of software, legally speaking, because implicit grants have to be settled in court. If you really want to go to court over it, and can afford it, then you may be right. Want to test that against Facebook? They reasoned (quite rightly) that it would be silly to suggest that.
- andreyf 9y ago
  What would their case be? "Yes, we gave away the software and documented it and paid designers to design it all pretty and spent marketing effort promoting it but nobody is allowed to use it because it's patented technology"? Has any court ever ruled that a permissive license like BSD does not include a patent grant when it says "use in source and binary forms, with or without modification, are permitted"? Because that seems flat-out silly.
  - abritinthebay 9y ago
    You're asking the wrong question. There is almost no case law that supports implicit patent grants and what little there is requires the patents be ones... "that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put" -- HP vs O-Type Stencil (1997) So, again, very limited. Very dangerous. Very very open to being sued and crushed economically. This is exactly why FB's patent grant provides you more rights that you get without it. There is no ambiguity, no fussing over what patents may or may not apply and be covered by the case law. It's explicit and better for you. Long story short: in many ways it's less safe to rely on implicit grants.
    - kbutler 9y ago
      But isn't it the case that any patents that would affect the use of react/prepack would "dominate the product or any uses of the product..."? Yes, the grant is better than nothing, but also, the risk if the grant is removed seems minimal.
      - abritinthebay 9y ago
        Any patents? Not at all. It's of course possible that they have (or will have) some that would be covered by an implicit grant - though you'd need to go to court to confirm that. But it's quite possible that they could have many patents that cover non-substancial parts. Guess what? You're now in violation of those if you haven't already licensed them. So, again, even in the best case the implicit grant still requires you to go to court to maybe get clear of some liability. Explicit ones have you covered from the start. More rights for you, broader coverage for you.
        kbutler 9y ago
        It seems very unlikely to find a way to use these products in an unintended way that would violate some tangentially related patent, but a) it's all hypothetical and b) one should never underestimate the ability and willingness of IP lawyers to allege an infringement. "You have stored the software on electronic media and used that media as a doorstop, violating our access control patents by keeping the door open." Hmm. Has that been filed yet?
  - derefr 9y ago
    Patents doesn't mean "nobody is allowed to use it"; patents mean "you are required to license the patent from the patent-holder, which usually requires paying royalties." I could totally see the point of a FOSS software project that implements a patented algorithm, where people work together to improve the thing but everyone who uses it still has to get a license from the patent-holder. (For a recently-top-of-mind example, Fraunhofer's MP3 decoding patent.) Thus, it's not obvious that a FOSS license automatically implies patent release. Fraunhofer could have open-sourced some reference MP3 encoder themselves, without releasing the MP3 patents.
    - djur 9y ago
      I think the situation you mention has a significant distinction: Fraunhofer (or whoever) would presumably advertise that they expect you to get a patent license to use the code in a product. Either they'd explicitly state that up front, or their lawyers would say it with the first politely worded letter to someone who starts using the "open source" code. Software distributed under those terms would no longer adhere to OSI's definition of open source (I think it violates points 1, 3, and 6) nor the FSF's Free Software Definition (points 2 and 3). It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact.
      - andreyf 9y ago
        > It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact. I would be amazed if something like this does not stand up in court. Read the BSD license — it's really relatively simple english.
- slavik81 9y ago
  I can read and understand the MIT or BSD licenses. That is an extremely valuable property of a contract to me. Both clearly state that I may modify and distribute the software. Adding a huge pile of details about what exactly that means makes me rather nervous. I am not a lawyer, and I worry that somewhere in that huge pile of explicitness that there are consequences that I don't anticipate, and that don't match up with the broad simple language those explicit details replaced.
  - eropple 9y ago
    That "pile of explicitness" replaces a pile of implicitness wrapped up in case law and statutes that are relevant to any case that arises but you don't know about. Because what you read in a license is not what matters--how do you know you understand them as they will be interpreted by a court of law? What do you not know that you do not know? (This is why companies have legal teams.)
    - slavik81 9y ago
      If I can't trust the justice system to interpret a simple contract plainly, then I don't have a chance of actually understanding the legal implications of a more complex contract.
      - derefr 9y ago
        I don't understand this perspective. The justice system is like a computer. It has no common sense; it has no "Do What I Mean" button. You have to write things out in full explicitness, for it to do anything predictable/sensible at all. And just like with explicitness in programming, explicitness in a contract doesn't translate to "more things that could go wrong"; it's instead fewer degrees of freedom. More things pinned down; fewer left to interpretation.
        slavik81 9y ago
        I expect that unexpected results may come from unexpected scenarios, but not in relation to basic questions that appear to already be addressed in the contract, like "can I use this software?" If I can't trust that a statement means what it says, no amount of elaboration can clarify the contract.
Lazare 9y ago
Some people think so. Others aren't so sure. US courts have not yet ruled on it. However, even the people who DO think an implicit grant exists would mostly agree that the implicit grant is not sublicensable, which makes it a horrible mess and probably unusable. An explicit grant is strongly preferable, IF people can agree on the terms. Facebook's terms are on the harsh side, but there's clear advantages to it existing.
- andreyf 9y ago
  If you license something under BSD and continue to license under the BSD, the question of sub-licensing seems moot.
- abritinthebay 9y ago
  > US courts have not yet ruled on it. They sort of have. A patent has to be a major and "dominant" part of the implicitly licensed tech for it to be granted. Basically - all existing case law says that you get some rights from implicit grants but it's also far less than explicit ones like FB's
  - andreyf 9y ago
    Not only does not all of the case law say this, that's not even what that case was about nor what that language said: http://en.swpat.org/wiki/Implicit_patent_licence#USA http://en.swpat.org/wiki/Implicit_patent_licence#USA
  - Lazare 9y ago
    Thanks for the info.
    - andreyf 9y ago
      Careful. I don't know what his motivations are, but the info is misrepresenting both the context and the meaning of the language he references: http://en.swpat.org/wiki/Implicit_patent_licence#USA http://en.swpat.org/wiki/Implicit_patent_licence#USA

eridius 9y ago

AIUI this issue still hasn't been settled to everybody's satisfaction.

abritinthebay 9y ago

And the weakness, legally speaking, of implicit patent grants was one major reason why GPL moved from v2 to v3. Explicit is much much safer for users of software, legally speaking, because implicit grants have to be settled in court. If you really want to go to court over it, and can afford it, then you may be right. Want to test that against Facebook? They reasoned (quite rightly) that it would be silly to suggest that.

andreyf 9y ago
What would their case be? "Yes, we gave away the software and documented it and paid designers to design it all pretty and spent marketing effort promoting it but nobody is allowed to use it because it's patented technology"? Has any court ever ruled that a permissive license like BSD does not include a patent grant when it says "use in source and binary forms, with or without modification, are permitted"? Because that seems flat-out silly.
- abritinthebay 9y ago
  You're asking the wrong question. There is almost no case law that supports implicit patent grants and what little there is requires the patents be ones... "that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put" -- HP vs O-Type Stencil (1997) So, again, very limited. Very dangerous. Very very open to being sued and crushed economically. This is exactly why FB's patent grant provides you more rights that you get without it. There is no ambiguity, no fussing over what patents may or may not apply and be covered by the case law. It's explicit and better for you. Long story short: in many ways it's less safe to rely on implicit grants.
  - kbutler 9y ago
    But isn't it the case that any patents that would affect the use of react/prepack would "dominate the product or any uses of the product..."? Yes, the grant is better than nothing, but also, the risk if the grant is removed seems minimal.
    - abritinthebay 9y ago
      Any patents? Not at all. It's of course possible that they have (or will have) some that would be covered by an implicit grant - though you'd need to go to court to confirm that. But it's quite possible that they could have many patents that cover non-substancial parts. Guess what? You're now in violation of those if you haven't already licensed them. So, again, even in the best case the implicit grant still requires you to go to court to maybe get clear of some liability. Explicit ones have you covered from the start. More rights for you, broader coverage for you.
      - kbutler 9y ago
        It seems very unlikely to find a way to use these products in an unintended way that would violate some tangentially related patent, but a) it's all hypothetical and b) one should never underestimate the ability and willingness of IP lawyers to allege an infringement. "You have stored the software on electronic media and used that media as a doorstop, violating our access control patents by keeping the door open." Hmm. Has that been filed yet?
- derefr 9y ago
  Patents doesn't mean "nobody is allowed to use it"; patents mean "you are required to license the patent from the patent-holder, which usually requires paying royalties." I could totally see the point of a FOSS software project that implements a patented algorithm, where people work together to improve the thing but everyone who uses it still has to get a license from the patent-holder. (For a recently-top-of-mind example, Fraunhofer's MP3 decoding patent.) Thus, it's not obvious that a FOSS license automatically implies patent release. Fraunhofer could have open-sourced some reference MP3 encoder themselves, without releasing the MP3 patents.
  - djur 9y ago
    I think the situation you mention has a significant distinction: Fraunhofer (or whoever) would presumably advertise that they expect you to get a patent license to use the code in a product. Either they'd explicitly state that up front, or their lawyers would say it with the first politely worded letter to someone who starts using the "open source" code. Software distributed under those terms would no longer adhere to OSI's definition of open source (I think it violates points 1, 3, and 6) nor the FSF's Free Software Definition (points 2 and 3). It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact.
    - andreyf 9y ago
      > It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact. I would be amazed if something like this does not stand up in court. Read the BSD license — it's really relatively simple english.
slavik81 9y ago
I can read and understand the MIT or BSD licenses. That is an extremely valuable property of a contract to me. Both clearly state that I may modify and distribute the software. Adding a huge pile of details about what exactly that means makes me rather nervous. I am not a lawyer, and I worry that somewhere in that huge pile of explicitness that there are consequences that I don't anticipate, and that don't match up with the broad simple language those explicit details replaced.
- eropple 9y ago
  That "pile of explicitness" replaces a pile of implicitness wrapped up in case law and statutes that are relevant to any case that arises but you don't know about. Because what you read in a license is not what matters--how do you know you understand them as they will be interpreted by a court of law? What do you not know that you do not know? (This is why companies have legal teams.)
  - slavik81 9y ago
    If I can't trust the justice system to interpret a simple contract plainly, then I don't have a chance of actually understanding the legal implications of a more complex contract.
    - derefr 9y ago
      I don't understand this perspective. The justice system is like a computer. It has no common sense; it has no "Do What I Mean" button. You have to write things out in full explicitness, for it to do anything predictable/sensible at all. And just like with explicitness in programming, explicitness in a contract doesn't translate to "more things that could go wrong"; it's instead fewer degrees of freedom. More things pinned down; fewer left to interpretation.
      - slavik81 9y ago
        I expect that unexpected results may come from unexpected scenarios, but not in relation to basic questions that appear to already be addressed in the contract, like "can I use this software?" If I can't trust that a statement means what it says, no amount of elaboration can clarify the contract.

Lazare 9y ago

Some people think so. Others aren't so sure. US courts have not yet ruled on it. However, even the people who DO think an implicit grant exists would mostly agree that the implicit grant is not sublicensable, which makes it a horrible mess and probably unusable. An explicit grant is strongly preferable, IF people can agree on the terms. Facebook's terms are on the harsh side, but there's clear advantages to it existing.

andreyf 9y ago
If you license something under BSD and continue to license under the BSD, the question of sub-licensing seems moot.
abritinthebay 9y ago
> US courts have not yet ruled on it. They sort of have. A patent has to be a major and "dominant" part of the implicitly licensed tech for it to be granted. Basically - all existing case law says that you get some rights from implicit grants but it's also far less than explicit ones like FB's
- andreyf 9y ago
  Not only does not all of the case law say this, that's not even what that case was about nor what that language said: http://en.swpat.org/wiki/Implicit_patent_licence#USA http://en.swpat.org/wiki/Implicit_patent_licence#USA
- Lazare 9y ago
  Thanks for the info.
  - andreyf 9y ago
    Careful. I don't know what his motivations are, but the info is misrepresenting both the context and the meaning of the language he references: http://en.swpat.org/wiki/Implicit_patent_licence#USA http://en.swpat.org/wiki/Implicit_patent_licence#USA