Apache disallows the Facebook BSD+patent license

Posted Jul 19, 2017 15:12 UTC (Wed) by juliank (guest, #45896)
In reply to: Apache disallows the Facebook BSD+patent license by jejb
Parent article: Apache disallows the Facebook BSD+patent license

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.