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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

by jonas21 12y ago

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 maintaining the ability to use these patents defensively, in the event someone sues them for infringing a different patent. It's ironic that people are freaking out about this. If anything, we should be encouraging more companies to give away patent rights. Sure, it's not as broad as the Apache license, but it's a lot better than the default (nothing), and given some of the ridiculous patent lawsuits that have been brought against Facebook, Google, and others, I can understand why they'd want to avoid restricting their ability to use their patents defensively.

DannyBee 12y ago
"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 maintaining the ability to use these patents defensively, in the event someone sues them for infringing a different patent. " This is 100% totally and completely wrong :) The BSD license normally includes an implied patent license. It says " Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met .. " This grants an implied patent license to the patents necessary to actually do this, as long as you meet the restrictions. This is actually well settled law. You don't get to give people stuff unrestricted, and say "you can use this for free", and then say "just kidding, what i meant was, you can use this for free as long as you pay me for the patents" However, when you do what facebook has done, and give an explicit license, you have overwritten the terms of that implied license, and you get no implied license. So it is not only "not unambiguously safer", you are not "left with the same rights you had under the bsd license if it is revoked". This is because if you revoke the explicit grant, you get nothing in terms of patents. But the implicit grant is not revokable unless you violate the copyright license. So sorry, but this is not "better than the default" and does not in fact, help you.
- matthewmacleod 12y ago
  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 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
  - DannyBee 12y ago
    ""I'm not sure it is, and I'd argue the situation is unclear." I wouldn't. What you've quoted is Larry Rosen's view. Larry is a wonderful guy, but his views are pretty far outside the norm for open source lawyers. To start "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." This is now settled since he wrote this. It is in fact a contract, that, if breached, leaves the licensor without a copyright license (causing both infringement of copyright and breach of contract). So you don't have to worry about this. The latter is a real issue, but one that most explicit grants don't solve either. In particular, apache/et al have explicit grants do not cover modifications by others that suddenly encompass patents. So you aren't any better off there either :)

by jonas21 12y ago

DannyBee 12y ago

"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 maintaining the ability to use these patents defensively, in the event someone sues them for infringing a different patent. " This is 100% totally and completely wrong :) The BSD license normally includes an implied patent license. It says " Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met .. " This grants an implied patent license to the patents necessary to actually do this, as long as you meet the restrictions. This is actually well settled law. You don't get to give people stuff unrestricted, and say "you can use this for free", and then say "just kidding, what i meant was, you can use this for free as long as you pay me for the patents" However, when you do what facebook has done, and give an explicit license, you have overwritten the terms of that implied license, and you get no implied license. So it is not only "not unambiguously safer", you are not "left with the same rights you had under the bsd license if it is revoked". This is because if you revoke the explicit grant, you get nothing in terms of patents. But the implicit grant is not revokable unless you violate the copyright license. So sorry, but this is not "better than the default" and does not in fact, help you.

matthewmacleod 12y ago
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 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
- DannyBee 12y ago
  ""I'm not sure it is, and I'd argue the situation is unclear." I wouldn't. What you've quoted is Larry Rosen's view. Larry is a wonderful guy, but his views are pretty far outside the norm for open source lawyers. To start "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." This is now settled since he wrote this. It is in fact a contract, that, if breached, leaves the licensor without a copyright license (causing both infringement of copyright and breach of contract). So you don't have to worry about this. The latter is a real issue, but one that most explicit grants don't solve either. In particular, apache/et al have explicit grants do not cover modifications by others that suddenly encompass patents. So you aren't any better off there either :)