6 ms·

If it's licensed MIT, the Engineers just say "it's MIT license like half of the libraries we already use" and it's a legal non-issue. If the license is not one

If it's licensed MIT, the Engineers just say "it's MIT license like half of the libraries we already use" and it's a legal non-issue. If the license is not one of the standard ones already in use, and it mentions patents, suddenly legal gets involved and it's a disaster. They're very risk-adverse and no one's really sure what will happen when it gets to court. It doesn't have to make sense - after all, most software patents don't make sense, and most software patent lawsuits don't make sense. Copyright makes some sense - some entity wrote the code and has (or has not) given explicit permission for others to use it, and under common open-source licenses those terms are reasonably well understood. But patents can come out of left-field and be unrelated to the user or the producer of the code. Being aware of patents (which should not cover what you're doing or should not exist) makes punitive damages worse. Again, best to just put your head in the sand and hope the patents don't notice you. Any language about patents adds complications which no one wants to figure out.

ballenf 9y ago
And at small to medium-sized businesses, they don't have in-house IP attorneys and their in-house counsels (or outside lawyers on retainer) will likely punt such questions to an outside firm or IP specialist. And that will come with an unattractive price.
ngrilly 9y ago
I don't get your point about MIT licensed being a standard. The BSD license used by React is a standard too.
- karlshea 9y ago
  But BSD+Patents isn't.
  - ngrilly 9y ago
    What I meant is that Facebook could just have used BSD without a patent grant. But I read in other comments that some some lawyers think MIT implies a patent grant, which could explain why they switched from BSD to MIT.
    - karlshea 9y ago
      > What I meant is that Facebook could just have used BSD without a patent grant. Ahh, I see. But I think if they were just using BSD instead of BSD+Patents no one would have had any issue with it.
carussell 9y ago
This is the first time I've seen "put your head in the sand" as an actual recommendation, instead of being characterized as something not to do. And as far as recommendations go, it's more than a little bit nutty.
- chc 9y ago
  It's actually a common policy when it comes to patents. If you are found to infringe on a patent and it can be shown that you knew about it, the penalties are much harsher. This is one of the many reasons people consider the patent system to be badly broken.
  - jakelazaroff 9y ago
    Is there no similar penalty for intentionally foregoing due diligence specifically to avoid harsher penalties?
    - chc 9y ago
      AFAIK, no. I don't know of any case law that says the reason you were unaware of the patent is relevant; just whether the infringement was "willful" — one component of which being knowledge of the patent.
    - Lazare 9y ago
      There is not. If you know the patent exists, you get higher (I think triple?) damages. If you don't, you don't. And you have no obligation to check. Example: There is a patent in the US on ordering food from a menu online. It's held by a NPE (aka, a patent troll), and they charge a fairly high license fee. Some people who offer online ordering to restaurants pay the license fee; others don't. If you don't pay, then you can afford to charge lower prices than your competitors. If you do pay, then it's in your interests to tell everyone you meet about the patent, because every person you tell is someone who now faces triple damages if they opt to use on your your non-paying competitors. Let me say that again, because it's so crazy: Some companies actually advertise their high prices, because a potential customer just reading their pricing page can thereafter no longer opt for a lower priced competitor without being subject to increased damages.
kelnos 9y ago
So, in other words, what you're effectively saying is that everyone's reaction to this is irrational, but understandable. People understand the MIT license (or even just the regular BSD license), but as soon as something brings patents into the mix, even if the clause actually gives you more rights and legal cover, people get scared and don't want to deal with it? That's... sad. > Being aware of patents ... makes punitive damages worse. Sure, but that doesn't have anything to do with a BSD+Patents license. The license doesn't say "you also must do extensive patent research when using our software". You have to actually be aware of the patents that you're infringing to be held liable for extra damages.
- mort96 9y ago
  An argument I've read is that MIT and BSD are widely understood to give an implicit patent grant, and Facebook's explicit grant overrides the implicit one, and Facebook's is more restrictive than the implicit one because you lose that patent grant if you ever try to sue Facebook. Also, IANAL, so I may be entirely wrong.

ballenf 9y ago

And at small to medium-sized businesses, they don't have in-house IP attorneys and their in-house counsels (or outside lawyers on retainer) will likely punt such questions to an outside firm or IP specialist. And that will come with an unattractive price.

ngrilly 9y ago

I don't get your point about MIT licensed being a standard. The BSD license used by React is a standard too.

karlshea 9y ago
But BSD+Patents isn't.
- ngrilly 9y ago
  What I meant is that Facebook could just have used BSD without a patent grant. But I read in other comments that some some lawyers think MIT implies a patent grant, which could explain why they switched from BSD to MIT.
  - karlshea 9y ago
    > What I meant is that Facebook could just have used BSD without a patent grant. Ahh, I see. But I think if they were just using BSD instead of BSD+Patents no one would have had any issue with it.

carussell 9y ago

This is the first time I've seen "put your head in the sand" as an actual recommendation, instead of being characterized as something not to do. And as far as recommendations go, it's more than a little bit nutty.

chc 9y ago
It's actually a common policy when it comes to patents. If you are found to infringe on a patent and it can be shown that you knew about it, the penalties are much harsher. This is one of the many reasons people consider the patent system to be badly broken.
- jakelazaroff 9y ago
  Is there no similar penalty for intentionally foregoing due diligence specifically to avoid harsher penalties?
  - chc 9y ago
    AFAIK, no. I don't know of any case law that says the reason you were unaware of the patent is relevant; just whether the infringement was "willful" — one component of which being knowledge of the patent.
  - Lazare 9y ago
    There is not. If you know the patent exists, you get higher (I think triple?) damages. If you don't, you don't. And you have no obligation to check. Example: There is a patent in the US on ordering food from a menu online. It's held by a NPE (aka, a patent troll), and they charge a fairly high license fee. Some people who offer online ordering to restaurants pay the license fee; others don't. If you don't pay, then you can afford to charge lower prices than your competitors. If you do pay, then it's in your interests to tell everyone you meet about the patent, because every person you tell is someone who now faces triple damages if they opt to use on your your non-paying competitors. Let me say that again, because it's so crazy: Some companies actually advertise their high prices, because a potential customer just reading their pricing page can thereafter no longer opt for a lower priced competitor without being subject to increased damages.

kelnos 9y ago

So, in other words, what you're effectively saying is that everyone's reaction to this is irrational, but understandable. People understand the MIT license (or even just the regular BSD license), but as soon as something brings patents into the mix, even if the clause actually gives you more rights and legal cover, people get scared and don't want to deal with it? That's... sad. > Being aware of patents ... makes punitive damages worse. Sure, but that doesn't have anything to do with a BSD+Patents license. The license doesn't say "you also must do extensive patent research when using our software". You have to actually be aware of the patents that you're infringing to be held liable for extra damages.

mort96 9y ago
An argument I've read is that MIT and BSD are widely understood to give an implicit patent grant, and Facebook's explicit grant overrides the implicit one, and Facebook's is more restrictive than the implicit one because you lose that patent grant if you ever try to sue Facebook. Also, IANAL, so I may be entirely wrong.