Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 11:08 UTC (Wed) by cladisch (✭ supporter ✭, #50193)
In reply to: Apache disallows the Facebook BSD+patent license by Otus
Parent article: Apache disallows the Facebook BSD+patent license

That's how contracts are to be interpreted. For example, MBIA Ins. Corp. v. Patriarch Partners VIII, LLC says:

Well-settled rules of contract construction require that a contract be construed as a whole, giving effect to the parties' intentions. Specific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one.

So it is clear that Facebook intends that the additional patent grant applies to any patents, and that the implied patent grant in the plain BSD license (if it exists) does not.

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 11:22 UTC (Wed) by karkhaz (subscriber, #99844) [Link] (1 responses)

Thank you, that's instructive!

Does this mean that the vanilla 3-clause BSD license may or may not have an implicit patent grant, depending on whether the licensor additionally offered an explicit patent grant?

For example, suppose that a court actually finds that Facebook's software does not have an implicit patent grant for the very reason that you specified: Facebook intends that you only have a patent grant if you accept their additional terms of patent retaliation. Does that mean that a different court could later find that the BSD license _does_ contain an implicit patent grant if the licensor didn't offer an explicit one, despite the Facebook precedent?

Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 11:32 UTC (Wed) by niner (subscriber, #26151) [Link]

Of course. It can also easily happen that one court rules that there's an implicit patent grant in the BSD license while a different court rules that there isn't. That's even independent of the existence of an additional patent grant. Just put those two courts into different jurisdictions. This uncertainty is the whole reason for the patent clauses added to GPLv3. The only way of preventing courts having to guess at the author's intentions are to make them explicit.