Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 10:02 UTC (Wed) by juliank (guest, #45896)
In reply to: Apache disallows the Facebook BSD+patent license by lkundrak
Parent article: Apache disallows the Facebook BSD+patent license

But if there is an additional patent grant, that implies just by existence that there is no such grant in the BSD license, and thus you have no patent license.

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 14:52 UTC (Wed) by jejb (subscriber, #6654) [Link] (7 responses)

> But if there is an additional patent grant, that implies just by existence that there is no such grant in the BSD license, and thus you have no patent license.

Just on this, a licence must contain some phrasing that implies the patent grant and gives it some scope and consequences, like GPLv2 clause 7. Absent that, it's highly unlikely a court will find that any of the BSD family of licences contains an implied patent grant.

However, if a court did find BSD to contain such a grant, no additional permission of Facebook could remove it because you'd get the rights twice: once via the implicit grant and once via the Facebook explicit grant. The recipient doing something that terminated the explicit grant wouldn't affect the implicit one and thus you'd still possess the BSD patent grant.

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 15:12 UTC (Wed) by juliank (guest, #45896) [Link] (4 responses)

The BSD license states that "Redistribution and use in source and binary forms, with or without
modification, are permitted provided that [...]" - if the software is patented, that must be seen as including a patent license to the extent necessary to perform these activities, otherwise the license is useless.

But if you now state "Hey, we add a patent grant, as the license does not have one", this effectively also changes how the license should be interpreted in the context, effectively stating that the license does not grant patents. If you state that, and the court comes back saying: "Hey, the patent grant is not needed, the license already grants patents", that would be an odd situation.

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 15:15 UTC (Wed) by juliank (guest, #45896) [Link] (2 responses)

I think cladisch explains that better below, with the reference to MBIA Ins. Corp. v. Patriarch Partners VIII, LLC .

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 17:41 UTC (Wed) by jejb (subscriber, #6654) [Link] (1 responses)

> I think cladisch explains that better below, with the reference to MBIA Ins. Corp. v. Patriarch Partners VIII, LLC

I believe he thinks the reason to apply contract interpretations is the Artifex v Hancom decision. However, just because you can enforce contractual remedies under certain circumstances does not mean that a licence is interpreted exactly like a contract. The terms of a licence have universality, meaning they have to be interpreted in the same way for everyone. The only way to change this is to alter the terms. The Facebook patent grant, being an additional permission, does not alter the terms so any court decision that the BSD licence gives an implied patent grant would be binding on Facebook regardless of any evidence (or even an explicit statement) that Facebook's intention was not to grant patents except via the additional permission when they released code under the BSD licence.

The key question that governs whether the additional permission alters the terms of the licence is severability: if you receive code under BSD+FB may you re-release it as BSD only? Facebook already stated that you may.

Apache disallows the Facebook BSD+patent license

Posted Jul 20, 2017 5:55 UTC (Thu) by bernat (subscriber, #51658) [Link]

> The key question that governs whether the additional permission alters the terms of the licence is severability: if you receive code under BSD+FB may you re-release it as BSD only? Facebook already stated that you may.

You may, but you don't own any of the associated patent. So, the implicit grant people get from you through the BSD license is weaker that the implicit grant people may have got from Facebook if they kept only the BSD license.

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 15:48 UTC (Wed) by jejb (subscriber, #6654) [Link]

> The BSD license states that "Redistribution and use in source and binary forms, with or without modification, are permitted provided that [...]" - if the software is patented, that must be seen as including a patent license to the extent necessary to perform these activities, otherwise the license is useless.

That same arguments were made in the Rambus cases, plus an estoppel one that Rambus deceptively influenced the standard intending to assert its pending patents after adoption. Neither were found persuasive by the courts, which is why absent any language about patents in a licence or agreement, the legal assumption is there is no patent grant.

Apache disallows the Facebook BSD+patent license

Posted Jul 21, 2017 13:17 UTC (Fri) by mirabilos (subscriber, #84359) [Link] (1 responses)

I’d say an explicit grant to “use” something, without explicit reference to limit to only copyright law, also applies to all neighbouring laws.

Although I’d prefer to find courts ruling that software cannot be patented…

Apache disallows the Facebook BSD+patent license

Posted Jul 21, 2017 18:38 UTC (Fri) by jejb (subscriber, #6654) [Link]

> I’d say an explicit grant to “use” something, without explicit reference to limit to only copyright law, also applies to all neighbouring laws.

Well the current patent implied licences are judicial constructs meaning they're not supported by an explicit statute but instead come about in court by consideration of nearby laws plus common law expectations, yes. However, almost all of the constructs require some sort of promise about patents. It is thought (but not tested in court) that the patent non retaliation clause present in most open source licences constitutes such a promise. The problem for BSD is it doesn't have one.

The implied licence doctrine that doesn't require a promise is legal estoppel, which is currently constructed in terms of a sale of a patented item. The two requirements to invoke it are consideration and no non-infringing use (the estoppel theory is if I sell you an item which you cannot use in any way except by infringing a patent I hold, I can't then sue you for infringing that patent because my sale to you of the item is only effective if you can use it, thus the consideration I received from the sale must have implied a licence to my patent). No non infringing use is commonly considered to be satisfied if you make a contribution to an open source project which cannot be used unless one of the patents you hold is infringed, which works for BSD, but consideration is much harder to come by. Fenwick and West did an analysis of GPL in 2006 which suggested you could get to consideration in terms of the promise by the downstream recipients to distribute modifications under the same terms (GPLv2 clause 2), so it is possible legal estoppel works for some open source licences.

The problem is BSD imposes very few constraints on downstream recipients, so really has nothing in it that can be construed as consideration; thus Legal Estoppel doesn't apply in its current form. BSD, therefore, requires the creation of a new judicial construct of implied licence, which isn't impossible, but which would be risky to rely on because courts are wary of creating new judicial constructs.