The Facebook PATENTS drama is NBD
Okay, so there’s been a lot of talk and uncertainty about the Facebook PATENTS file and what it means for open source and corporate IP. Read Facebook’s summary of the whole thing here.
This piece below was written specifically in response to Raúl Kripalani’s article “If you’re a startup, you should not use React”, but here are the big questions:
1. Should I be scared by this new mechanism Facebook is using to conquer the world’s patents?
2. Is this the death of the React ecosystem and should we all move to something else?
3. Is Facebook destroying open source with predatory licensing practices?
No, this is not the death of open source, nor is Facebook trying to conquer the world’s patents. I don’t even think it even comes close to substantially threatening the React ecosystem; and I doubt folks will even be talking about it a month from now.
In fact, this whole concept of what Facebook is trying to accomplish with its PATENTS file isn’t new; it’s called “Defensive Termination” and it’s been a standard feature of how people grant patent rights for ages.
I just don’t think many developer folks in the JavaScript community realize this. Maybe Facebook owes a revision or two to their PATENTS file, but we shouldn’t encourage more needless FUD around open source and OSS licensing.
Below is a response to an article detailing my thoughts on why all this drama is undeserved.
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“IANAL, but life has taught me that in Law, you gotta be careful with ‘slightly different wordings’ ”
Haha, that’s very fair! Okay, I’ll make an effort to be more precise here. Thanks for the response, and excuse my poor word choice.
Unless I’m missing something fundamental, my position here is that I think all this energy directed at Facebook is both coming from and going to the wrong place.
There’s two parts to this: (1) the risk here is significantly overstated and (2) Facebook’s position wasn’t unreasonable.
Let me explain:
- Defensive termination isn’t new
This seems to be drawing a lot of attention, but defensive termination is a common feature of licenses. As you mentioned, it comes in many different forms. I don’t believe Facebook’s approach was particularly unreasonable given the other types of termination clauses we’ve seen.
It’s actually quite similar to a bunch of licenses out there, MPL, CPL, ASL, CDDL, etc… as you pointed out. I do agree it’s broad, but that’s not necessarily such a big deal given that some other licenses actually have stronger provisions — which leads me into my second point…
2. The Facebook patent grant might not be as strong as you think
You’ve praised quite a few licenses in your response:
Patent grants are good. Many licenses, including ASLv2, MPL, CDDL, not only include a patent grant, but also a “weak patent retaliation” clause — the one you refer to.
And I agree! One part I think you may have missed is that the licenses you’ve mentioned actually incorporate stronger protections than Facebook’s termination clause, not “more relaxed” — because of this:
Others like MPL not only revoke the patent grant, but also the copyright license as well — which depending on the project could be assumable.
Yes! Although I’m unclear on what you mean by “assuming the copyright license revokes”.
The important detail here is that a termination to the copyright license is actually something that’s regarded by corporate lawyers as significantly stronger than the patent right termination. You find this in the GPLv3 as well — but a termination to copyright can actually prevent you from using the code while the patent rights termination, well, prevents you from patent claims and litigation. In fact, the GPLv3 and MPL (which you cited) have come under significantly more scrutiny around its termination of copyright license, not patents.
This leads me to my next point…
3. Lawyers don’t agree
Ok. Kind of. Yes, you will always find lawyers that will agree with you. To your credit, there are quite a few that take issue with the PATENTS file. Some companies expressly disallow it, but the majority of the discussion around this has already happened years ago.
It’s not like this file has slipped under the radar of legal departments and existed in an ether of uncertainty. In fact, the PATENTS clause is already fairly well understood. Every year thousands of IP lawyers get to review it during their annual license audit. And the conclusion?
Meh. Not a big deal.
VMWare has been bitten HARD by its use of GPL software so you’ll find an interesting culture there to OSS licenses. But most professionals out there don’t agree with your risk assessment.
Unless you plan on suing Facebook, the termination really doesn’t do anything. Acquirers buy-in-large don’t care about the PATENTS clause when they run their license audits, especially if they find the IP they’re buying especially interesting. Same goes for investors, and so the real risk to startups is actually significantly more narrow.
And as for FOSSA clients:
I’m surprised that you guys at FOSSA didn’t differentiate between strong and weak patent retaliation.
We actually do! So you’re right, there is enough of a use case for this that we account for this in our product. I can only say that it’s not exceedingly popular, but I won’t elaborate on top of that.
Of course, legal opinions will always differ. You will definitely find allies in your assessment — and I don’t actually have any issues with your interpretation. Instead, I don’t think it’s as severe as you think, and I definitely don’t agree with your startup advice.
In Summary…
So look, I think you’re doing a great service by asking questions about licenses and challenging them in the open. However, I think some of your energy is misdirected and will have unintended consequences.
First, all of this is actually pretty old news. The mechanism to terminate has been around for ages, and PATENT clause itself has been examined in corporate settings for years as (in majority) a non-issue, and in my experience most private companies don’t agree with the risk.
Yes, your post is eye-catching! But I hate to see this kind of stuff spin out of proportion, especially when directed at a company that’s contributed so much to the OSS community. So here’s my thoughts:
- Facebook isn’t unethical about its OSS. In fact, it’s one of the few companies that deserves acknowledgement over its amazing and valuable contributions. Seriously.
- Telling startups to avoid today’s standard frontend framework is absurd. The case you bring up is so situational that I would be hard-pressed to find an investor or acquirer that will significantly correct a valuation over this; and we work with a lot of these folks!
- It’s bad advice tell startups to migrate off of React. Startups should focus on their business and participate in/use standard frameworks to RnD effectively. Advocating otherwise is misleading.
- Bolstering the FUD around OSS licenses will achieve the opposite effect of what you’re looking for. The only folks it serves are the businesses built off of OSS-FUD. The PATENTS file will not result in a closed-source world, but FUD might. If companies don’t feel comfortable leveraging and engaging in some of the most valuable open RnD that exists right now, then life will be harder for all of us. And this consequence is completely real and happens already — it’s not just a hypothetical.
So even if you have a problem with how expansive Facebook’s PATENTS clause is, there’s no way its built-in “risks” or people’s confidence in them have even close to enough gasoline to substantially affect companies and damage the OSS community — however FUD does.
Even though painting this PATENTS license as “evil” could probably bolster a stronger case for FOSSA (we sell open source license compliance tools), doing so would be bad for open source.
I’m not a lawyer, this isn’t legal advice, and my opinions are my own.
