IANAL, but by my reading, the patent grant is intended as additional protection for both Facebook and the consumers of React. Facebook is free to register patents that may overlap in some ways with code that they've open-sourced, and you are free to use their code without fear that you'll infringe upon a future patent.
The 3-clause BSD license is retained in its original form [1] and makes no reference to the patent grant. Therefore, I believe you could fork the project and remove the patent grant in your fork. You would then lose the patent protection from Facebook, but they also could not revoke your rights to your fork of React.
That said, if your use of React somehow violates one of Facebook's patents, you're in trouble. The original version of React would be protected by the additional patent grant, but your fork wouldn't be.
I don't think Facebook is acting maliciously; I just think they're trying to provide a means to balance their (perceived) need to protect their patent portfolio vs. their desire to release OSS. If they start suing people that are using their open-source projects, it's going to undermine the (rather good) reputation the company has for releasing quality OSS.
I doubt they're acting maliciously too, but it's not as rosy as you paint either.
The patent grant is automatically lost if you argue "any right in any patent claim of Facebook is invalid or unenforceable". Notably, this applies to all patent suits, whether or not you're right, even if you're the person being sued, rather than you vice versa.
In effect, Facebook can revoke the patent grant at will just by bringing an onerous patent lawsuit - you can either agree to their arbitrary terms (e.g. never to use React again and pay X billion), or you can argue their patent rights are invalid or unenforcable and lose the patent grant. That onerous suit might be over the very patents this grant licenses; it really doesn't matter.
At best, this is a promise not to consider past patent infringement, since you'll receive warning that your license to React patents revoked.
The fact that suing over usage of OSS would damage their reputation is irrelevant: even without a patent grant it would be perceived as extremely untrustworthy to sue over submarine patents. The patent grant doesn't really change that (it might make the commentary even more snarky should such an event occur, but that's about all). Also, realize that if this ever does occur, it's unlikely to be in a world that looks at Facebook like it does today. This is typically something you'd expect of a company in decline: they're not after good PR at that point, but after extracting maximal rents from others. And of course it wouldn't need to be Facebook itself that filed the lawsuits; they might sell off that intellectual property to some patent troll and claim (somewhat reasonably, I might add) that it's not really their responsibility what happens later on. Actual events have repeatedly shown that large firms have no qualms in making somewhat shady IP deals if that can give them a competitive advantage (e.g. the lawsuits surrounding android). In short: I don't think bad PR is a very effective disincentive for a patent lawsuit.
It's also pretty similar to the Defensive Patent License. With that, to receive a free patent license, you have to join the 'community' by licensing all of your patents under the DPL to other community members. If you sue a member anyway, your license is terminated. The language in the DPL is more precise in limiting itself to actual lawsuits (rather than just "claims") and excluding counterclaims, but it's the same general idea.
edit: corrected; DPL is not Twitter's license. Twitter's is the "Innovator's Patent Agreement", which is even more broad in its definition of "defensive" lawsuits:
(a) against an Entity that has filed, maintained, threatened, or voluntarily participated in a patent infringement lawsuit against Assignee or any of Assignee’s users, affiliates, customers, suppliers, or distributors;
(b) against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years, so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity; or
(c) otherwise to deter a patent litigation threat against Assignee or Assignee’s users, affiliates, customers, suppliers, or distributors.
This is actually a much less broad restriction because it stipulates "voluntarily participated". The react license terminates even if you're on the receiving end of a lawsuit - it's not defensive, it's potentially offensive.
IANAL, but this seems to imply that, if you use React, Facebook (and affiliates) can infringe on any of your patents with impunity -- you can't even verbally accuse them of infringement.
The same applies to Facebook's other open source projects (e.g. immutable-js), so one must also avoid any libraries that depend on those projects (even if it's a dependency of a dependency of a...)
This seems to conflict with the spirit of OSS, since the grant doesn't apply to modified versions of React (i.e., trying to fork React could result in a lawsuit). Again, IANAL, so I might be misreading this.
Also, as pointed out in previous discussions of this clause, this is significantly more restrictive than the Apache license.
This would make me quite hesitant about using React for any project of significant size (especially for a large enterprise). I saw a post earlier about Netflix using React -- I wonder if they know about this.
I think companies like Netflix et al are in a mutually assured destruction scenario with Facebook and others. They have the lawyers in house that can defend, counter sue, etc & by the current state of the patent system I'm sure there is something Netflix could try to sue FB for & I would guess neither one wants to fire the first shot in the war. The companies where this will be an issue for is smaller companies that may be in the right but can't afford a defense. INAL, I'm also a big user of React, while this license does irk me a bit, in reality if I were to ever go up against FB's legal team, I know I would most likely lose anyways. Don't mean to be defeatist about it, but its the state of our current legal system.
IANAL either but I think the part about modifications by third parties means that you don't get a license to an additional Facebook patent you might infringe by modifying it.
So if you change React to add some functionality that infringes on a patent Facebook holds you don't automatically get a license to that patent.
The license granted hereunder will terminate, automatically and without notice,
for anyone that makes any claim (including by filing any lawsuit, assertion or
other action) alleging (b) that any right in any patent claim of Facebook is invalid or
unenforceable.
that means if facebook sues you for any reason, they can also take away react if you try to fight it!!!!!!! Which raises the question: Can software truly be open source if there is a company to gain by controlling it?
That's a retaliation clause. That means if YOU file a lawsuit against Facebook then you lose the patent grant, but only if the lawsuit you file claims that you own some right to the software in question.
Basically this avoids Facebook being unable to defend themselves if you claim you have a patent that covers React.
"The license granted hereunder will terminate, automatically and without notice, for anyone that makes any claim"
For anyone who makes any claim. The legal definition of claim is that you must assert you own all or part of the software. If Facebook makes the claim against you, the only defense you need is their patent license grant and the software license.
My IANAL interpretation is that you can't ever say that Facebook infringes on anyone's patent, and you can't ever say any of Facebook's patents are not valid. In any setting, not just in court or as part of a legal process. Careful what you write in AskPatents!
You can defend yourself, however you can not do so by saying anything bad about Facebook, you are basically restricted to say you do not infringe. I'd say it qualifies as a legal trojan horse.
There is actually prior art; React is not the first public use of an immutable virtual DOM; a basically identical approach was presented at Clojure Conj November 2012 (React launched publicly in May 2013 iirc, though React was used on instagram.com in September 2012 [0]):
If I found myself in a position where Facebook took away my access to React.js and to the patented ideas, does this help me at all? E.g. could I use this as a base and implement the immutable virtual dom myself, or looking into alternatives like mithril?
> E.g. could I use this as a base and implement the immutable virtual dom myself, or looking into alternatives like mithril?
Prior art is probably only going to help in the case that you're already embroiled in a legal battle over infringement. That or if a USPTO patent review were to occur (e.g. [1]). But it'd be best to not be a potential infringer at the same time you contest a Facebook patent, unless you want FB's legal team gunning for you in retaliation.
That said, I think there are going to be a lot of developers who simply don't know about and/or ignore the existence of this patent and go merrily about their lives anyway.
I will never use React for anything but (possibly) toy projects.
You don't need a lawyer to tell you being unable to sue Facebook for patent infringement even if unrelated to the licensed software, while Facebook is free to sue you for infringing other patents without you being able to challenge such patents, is an unfair and dangerous license.
And counting on Facebook's good will is as foolish as betting your livelihood on a Microsoft "promise" not to sue you.
I understand that these things are written as defensively as possible, but could someone explain how likely this is to actually be used? It seems like something that's intended to protect FB, but I can't imagine a situation in which they would actually use it.
Perhaps someone with more legal experience could point out the precedent?
Cloning a project does not absolve you from patent claims, though it does from copyright.
What is the issue with the React patent grant, exactly?
(edit: reread it again. seems it applies to all Facebook patents. I had thought it was like the Opus license, I was wrong)
In the flurry of IANALs in the comments, the readings of others seemed to match what bothered me:
nkohari put it best:
That said, if your use of React somehow violates one of Facebook's patents, you're in trouble. The original version of React would be protected by the additional patent grant, but your fork wouldn't be.
As nkohari goes on to state (which I agree with), they're probably just trying to protect their patent portfolio and participate in OSS.
I, however, don't want to both even being anywhere close to an idea of compromising F/OSS, as there are lots and lots of options out there that are well within and have no additional legalese that could be misconstrued (whether positively or negatively).
Does the revocation part apply to the entire license (code + patents) or just the patent clause? If you don't care about FB's patents, can you just treat React as being BSD licensed?
I think the implication is that Facebook might hold patents on part of React and you will lose the right to use work based on those patents (i.e. React and/or your code based on it) if you try to knock down any of Facebook's patents.
What happens if you stick with 0.11.2 - the last version that was released under the Apache 2.0 license? This specific license should allow you to make modifications like bug fixes or some other incremental improvements.
The existence of prior art is also interesting especially in the case with Immutable.js which is basically a JavaScript implementation of common data structures and algorithms.
That's not a patent grant by any reasonable interpretation. You're still liable for any infringement, after all, the patent grant automatically is revoked if they accuse you of patent infringement and you disagree - regardless of whether the patent in question originally was granted.
Exactly which scenarios is this supposed to cover?
It doesn't seem quite that bad. If Facebook sues you over something related to React, you're allowed to argue that the suit is invalid because of the patent license grant. What you're not allowed to do is argue that the patent itself is wholly invalid.
Even so, the idea that you could sign away your rights to make a particular kind of argument in court sure seems like a crazy and nefarious way of hacking the legal system. But what do I know.
If you argue that "any right in any patent claim of Facebook is invalid or unenforceable" you lose the patent grant. So you can indeed argue the (patent) suit is invalid or unenforceable, and you'll probably win, but by doing so you'll lose that right in the future: you'd need to immediately stop using react.
In effect, the license is revocable by facebook, without cause. In short; it's not a patent grant; it's merely an agreement not to sue over past infringements.
That's incorrect. It's only revocable if you make a claim. As the person said, if the only claim you make is that you are using the patent grant itself, your rights are not revoked.
It's overly broad, but your interpretation isn't correct.
The title was rewritten, specifically the concerning part is the 2nd paragraph. Apparently Facebook reserves the right to revoke anyone's license using React if FB feels there is a patent infringement.
The license granted hereunder will terminate, automatically and without notice,
for anyone that makes any claim (including by filing any lawsuit, assertion or
other action) alleging (a) direct, indirect, or contributory infringement or
inducement to infringe any patent: (i) by Facebook or any of its subsidiaries or
affiliates, whether or not such claim is related to the Software,
So if you're a patent troll, you don't get to use React.
If you're not a believer in software patents (and assuming FB won't sue you for any unrelated patent infringement you'd want to retaliate for), attaching doomsday patent clauses to OSS software actually seems like a pretty good way to shut down software patent lawsuits.
Similar in spirit, yes, but Facebook's clause seems to be much, much broader, even though both operate by the same mechanism (using license termination as the penalty).
Contrary to the stereotypes about "viral" licensing, the GPLv3's patent grant seems to be very narrowly tailored. It says that if you redistribute GPL'd code while "knowingly relying" on patent rights that you own or were granted, then you must arrange to grant those specific patent rights to the recipients. It's equitable, in the sense that the rights you have to forego are the same ones that were granted to you: only those that would necessarily be infringed by using and distributing the software.
Facebook's terms are similar to the extent that they cover patent claims "related to the Software." But the real difference (to my layman's eyes) is in the application to other patents. You're not allowed to enforce any patent claims against Facebook or its affiliates, whether or not those patents have anything to do with React. And in the reverse direction, if Facebook accuses you of infringing a patent of any kind, you have to forfeit the right to challenge the patent's validity.
That's taking a relationship that's already heavily skewed towards big companies with huge patent arsenals, and making it even more lopsided.
This is actual fairly common nowadays. And rightfully so, if you sue us for patent infringement....no you can not use our OPEN SOURCE stuff anymore. Seems pretty fair to me.
Seems to me the more problematic part is clause b:
The license granted hereunder will terminate, automatically and without notice, for anyone that makes any claim (including by filing any lawsuit, assertion or
other action) alleging ... (b) that any right in any patent claim of Facebook is invalid or unenforceable.
Doesn't that mean that if Facebook sues you for patent infringement in something else you did (possibly unrelated to React) and you disagree, they can take away your licence to use React? In other words, Facebook could arbitrarily shut down your use of React by filing a spurious patent lawsuit against you. And if your use of React was critical to your business and Facebook didn't like the look of your business, that could be dangerous.
I respect the right of any author to release their work under any license they see fit. And of course anyone is free to use React or not. So in that sense any license is fair.
But there is an asymmetry here. Facebook offers the open source code license and you use it fairly and per the terms. Facebook then hypothetically steals your company's patented Crown Jewels. When you send them a C&D they retaliate by revoking your license. So now they've kicked your ass twice and you've done nothing to warrant it. That would not be what I call "fair".
I'm not terribly worried. At the end of the day if Facebook did this the patent revocation would likely be unenforceable. This would be a simple example of Unconscionability. You can't enforce a contract that is grossly unfair.
This entire thing is an anti-patent troll measure.
What, the "obvious" reason that you could always choose to not defend yourself against Facebook's accusation? The very last clause of the license has almost exactly the effect implied by the original title, which presupposes only that Facebook has patents covering React with which to prevent your use without a patent license.
The 3-clause BSD license is retained in its original form [1] and makes no reference to the patent grant. Therefore, I believe you could fork the project and remove the patent grant in your fork. You would then lose the patent protection from Facebook, but they also could not revoke your rights to your fork of React.
That said, if your use of React somehow violates one of Facebook's patents, you're in trouble. The original version of React would be protected by the additional patent grant, but your fork wouldn't be.
I don't think Facebook is acting maliciously; I just think they're trying to provide a means to balance their (perceived) need to protect their patent portfolio vs. their desire to release OSS. If they start suing people that are using their open-source projects, it's going to undermine the (rather good) reputation the company has for releasing quality OSS.
[1] https://github.com/facebook/react/blob/master/LICENSE