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IANAL, but here's an ominous scenario: There is no patent clause now. Assuming some FB patent has crept its way in one of their open source, if a company sues

IANAL, but here's an ominous scenario: There is no patent clause now. Assuming some FB patent has crept its way in one of their open source, if a company sues FB for patent infringement, FB would be able to counter-sue for copyright infringement due to the suing company's use of FB's open source. "As long as you don't sue us, we won't sue you" kind of a deal. If the above scenario is true, it seems there is no de facto change beyond the political one. Anyone with more legal expertise able to disprove this scenario?

LeoNatan25 9y ago
So this post is getting downvoted, but no one is arguing why they disagree or believe this is not a realistic outlook. Emotional responses don't really help anyone, and this is not Reddit.
- chrisco255 9y ago
  Yeah I think people are downvoting statements they disagree with...even when they add to the conversation. This is bad because those comments can disappear on HN.
abiox 9y ago
> FB would be able to counter-sue for copyright infringement due to the suing company's use of FB's open source the whole point of mit/bsd/etc is copyright grant. fb can only realistically win a suit wrt infringement if they revoke the mit/bsd license first (not sure if this is possible...not sure if it's even been tried before).
- LeoNatan25 9y ago
  Revoking a license retroactively is not possible. But since there is no patent grant with the MIT license, using the open source software is–potentially–open to patent litigation. I don’t think this has been tested in court yet.
  - Sacho 9y ago
    The GPLv2 for example asserts that it provides a permissive patent grant under the "implied license" doctrine in patent law - https://copyleft.org/guide-next/comprehensive-gpl-guidech7.html https://copyleft.org/guide-next/comprehensive-gpl-guidech7.h... But you're right, I don't think it's been exhaustively tested in court, just like most software patent issues.
  - chrisco255 9y ago
    Well React was originally released as Apache. So React has run the gamut at this point.
    - LeoNatan25 9y ago
      In that case, there are two issues that need to be covered by FB; first, they need receive an agreement from all collaborators they agree with the license change—most likely, the SLA takes care of that; second, forks of the code up until the license change point still hold the original license—any fork that was created before the license change remains with the original license, and so does every use of code that consists only of code before the license change. This is what I meant by “retroactively”.
Sacho 9y ago
Why would Facebook sue for copyright infringement? Suing them for patent infringement doesn't invalidate the copyright - not for BSD+PATENTS, and certainly not for MIT. Your scenario doesn't make sense.
- LeoNatan25 9y ago
  What exactly doesn’t make sense? What in the theoretical scenario do you not understand? Here is the scenario without the … emotional baggage: —— Company X has patent P. Company X releases open source O which provides implementation of patent P. There is no patent grant in the license of open source O. Company Y uses open source O. —— Can company X sue company Y for infringement of patent P? I think the answer to this is “yes”.
  - detaro 9y ago
    I think they were nitpicking your choice of words. "copyright infringement" is not the same as infringing on a patent.
    - LeoNatan25 9y ago
      Right, sorry. I meant “patent infringement”, of course.
  - Sacho 9y ago
    What does this scenario have to do with "counter-suing" which you mentioned in your parent post? WRT patent grants, there's a few tidbits here and there about implicit patent grants(https://copyleft.org/guide-next/comprehensive-gpl-guidech7.html https://copyleft.org/guide-next/comprehensive-gpl-guidech7.h... and http://en.swpat.org/wiki/Implicit_patent_licence http://en.swpat.org/wiki/Implicit_patent_licence) but hardly any settled case law. At any rate, this is the situation with every MIT license, so I don't know why it's ominous.

LeoNatan25 9y ago

So this post is getting downvoted, but no one is arguing why they disagree or believe this is not a realistic outlook. Emotional responses don't really help anyone, and this is not Reddit.

chrisco255 9y ago
Yeah I think people are downvoting statements they disagree with...even when they add to the conversation. This is bad because those comments can disappear on HN.

abiox 9y ago

> FB would be able to counter-sue for copyright infringement due to the suing company's use of FB's open source the whole point of mit/bsd/etc is copyright grant. fb can only realistically win a suit wrt infringement if they revoke the mit/bsd license first (not sure if this is possible...not sure if it's even been tried before).

LeoNatan25 9y ago
Revoking a license retroactively is not possible. But since there is no patent grant with the MIT license, using the open source software is–potentially–open to patent litigation. I don’t think this has been tested in court yet.
- Sacho 9y ago
  The GPLv2 for example asserts that it provides a permissive patent grant under the "implied license" doctrine in patent law - https://copyleft.org/guide-next/comprehensive-gpl-guidech7.html https://copyleft.org/guide-next/comprehensive-gpl-guidech7.h... But you're right, I don't think it's been exhaustively tested in court, just like most software patent issues.
- chrisco255 9y ago
  Well React was originally released as Apache. So React has run the gamut at this point.
  - LeoNatan25 9y ago
    In that case, there are two issues that need to be covered by FB; first, they need receive an agreement from all collaborators they agree with the license change—most likely, the SLA takes care of that; second, forks of the code up until the license change point still hold the original license—any fork that was created before the license change remains with the original license, and so does every use of code that consists only of code before the license change. This is what I meant by “retroactively”.

Sacho 9y ago

Why would Facebook sue for copyright infringement? Suing them for patent infringement doesn't invalidate the copyright - not for BSD+PATENTS, and certainly not for MIT. Your scenario doesn't make sense.

LeoNatan25 9y ago
What exactly doesn’t make sense? What in the theoretical scenario do you not understand? Here is the scenario without the … emotional baggage: —— Company X has patent P. Company X releases open source O which provides implementation of patent P. There is no patent grant in the license of open source O. Company Y uses open source O. —— Can company X sue company Y for infringement of patent P? I think the answer to this is “yes”.
- detaro 9y ago
  I think they were nitpicking your choice of words. "copyright infringement" is not the same as infringing on a patent.
  - LeoNatan25 9y ago
    Right, sorry. I meant “patent infringement”, of course.
- Sacho 9y ago
  What does this scenario have to do with "counter-suing" which you mentioned in your parent post? WRT patent grants, there's a few tidbits here and there about implicit patent grants(https://copyleft.org/guide-next/comprehensive-gpl-guidech7.html https://copyleft.org/guide-next/comprehensive-gpl-guidech7.h... and http://en.swpat.org/wiki/Implicit_patent_licence http://en.swpat.org/wiki/Implicit_patent_licence) but hardly any settled case law. At any rate, this is the situation with every MIT license, so I don't know why it's ominous.