The following articles are referred to in this paper, and some contents of this article are quoted:
Patent tells you, why does Apache disable FB + PL code, author: Fu Qinwei.
Where there is oppression, there is resistance
As a patentee in the intellectual property circle, I admire open source sentiment and have written that even if patentees have patent feelings, the collision between open source and patent in the real world is still ugly. Now, that’s a bit of an understatement.
Having failed to dig into the history of the open source movement, I have simply concluded that the open source software movement is an uprising against the oppression of the intellectual property system, especially the patent system, on the software industry.
“Where there is oppression, there is resistance.”
In July 2017, “Apache Software Foundation Director and Vice President of Legal Affairs Chris Mattmann issued a formal statement: Facebook BSD+Patents (FB+PL) have been officially listed in the “CategoryX” list, so the Apache project cannot include or rely on the code of Facebook Patents; The code that has been released, under the FB+PL license, needs to be replaced by August 31.”
In short, Apache kicked FB+PL out. Is this an aggressive statement by Apache in the open source insurgency? Why do you say so?
Patent feelings
The story begins at the beginning:
The patent system came into being, and at that time it was not thought of as an evil man-eating system. The fundamental purpose of the patent system is to promote technological progress, thus promoting industrial and economic development. In order to achieve this goal, it is necessary to reasonably protect the initiative of inventors. Specifically, it is to give them a certain period of proprietary protection in return. Driven by such interests, they will actively make inventions and realize proprietary protection by applying for patents while promoting technological progress by publicizing technologies to the society.
“Before then [the adoption of the United States Constitution], any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things. ”
— Abraham Lincoln, Second lecture on discoveries and inventions, February 11, 1859
The patent sentiment is expressed in a speech by President Lincoln. Just read this phrase: the patent system adds fuel to the fire of genius.
Open source meets patent
By the 1990s patent piracy was in full swing, with the software industry suffering most. In the software industry, programmers and developers need to be open and free to communicate and leverage each other’s work. This characteristic is incongruous with patent system. This knot is one hundred years of President Lincoln never expected.
Fundamentally, the open source sentiment lies in giving up the exclusive right to obtain benefits for their intellectual labor achievements and freeing up the software so as to facilitate the circulation, utilization and industry development of the achievements.
There are two main intellectual property ropes tied to software: copyright and patents. Trademarks don’t play a central role. The way to untie the copyright cord is a mature one: a copyright open source license. Patents are tricky, mostly because they are intangible and often not in the hands of open source authors themselves. Copyright belongs to the author, so the author has the initiative; And the patent belongs to the applicant, the applicant has the initiative, the applicant can be any third party. This is the root of the conflict between open source and patents.
The biggest damage to open source sentiment is not knowing who secretly tied their work with the invisible rope of patents. This is where open source sensitivities and hostility to patents come from. Open source people often get angry and wonder why someone else should be able to tie up their intellectual work with a patent.
Sorry, this is an unfortunate answer: anyone can make improvements to any existing technology, including open source technology, and patent the improvements. And when someone else patents all the major improvements that make an open source technology possible, they block all the major solutions, and the open source technology is tied to their patents. This patenting technique has a nice name in the industry: patent layout. Defensive patent layout can be used to form a tight protection of their technological achievements. Offensive patent layout can be used to pick other people’s peaches, including open peach. Patent pirates belong to the full, superb use of patent means and legal procedures, radical play offensive patent layout to pick others peach. Sometimes the techniques can be so sophisticated as to fool patent examiners into protecting material that is close to prior art. The software industry was the hardest hit.
In terms of patents, the biggest threat to open source comes from third parties, not from open source authors, subsequent developers and users. In the community, people try to attach patent open source license in addition to copyright open source license, but because the effect of such additional license can only be extended to subsequent developers and users, and can not regulate third parties or patent pirates, the actual effect is limited.
Facebook gets kicked
Now, let’s rehash the Apache FB+PL issue. Apache is primarily interested in The existence of Facebook Patents and Patents, which allow for Patents that it doesn’t approve of.
Apache’s statement is a crisp defense of open source sentiment, but isn’t it a bit aggressive?
What is the number one problem for developing open source? Of course, we should distinguish between friends and enemies. Then, unite all the progressive forces that can be united and form a united front against the enemy.
The enemy of open source, I suspect, is third-party patent pirates, and the breeding ground for them. Facebook looks more like a friend to rally around: Facebook is actively contributing to and promoting open source, and its licensing efforts should not cross the line. If Facebook really wanted to bundle open source with patents, wouldn’t it be more radical to deploy a white glove as a third party? Why do we need Facebook Patents? Facebook, at least, is asking for a patent license out of basic good faith.
Rip off Facebook’s patent license
To further explore this issue, let’s look at the impact of the Facebook Patents and Licenses on open source.
The main terms of Facebook licenses are:
Additional Grant of Patent Rights Version 2
“Software” means the React software distributed by Facebook, Inc.
Facebook, Inc. (“Facebook”) hereby grants to each recipient of the Software
(“you”) a perpetual, worldwide, royalty-free, non-exclusive, irrevocable
(subject to the termination provision below) license under any Necessary
Claims, to make, have made, use, sell, offer to sell, import, and otherwise
transfer the Software. For avoidance of doubt, no license is granted under
Facebook’s rights in any patent claims that are infringed by (i) modifications
to the Software made by you or any third party or (ii) the Software in
combination with any software or other technology.
The license granted hereunder will terminate, automatically and without notice,
if you (or any of your subsidiaries, corporate affiliates or agents) initiate
directly or indirectly, or take a direct financial interest in, any Patent
Assertion: (i) against Facebook or any of its subsidiaries or corporate
affiliates, (ii) against any party if such Patent Assertion arises in whole or
in part from any software, technology, product or service of Facebook or any of
its subsidiaries or corporate affiliates, or (iii) against any party relating
to the Software. Notwithstanding the foregoing, if Facebook or any of its
subsidiaries or corporate affiliates files a lawsuit alleging patent
infringement against you in the first instance, and you respond by filing a
patent infringement counterclaim in that lawsuit against that party that is
unrelated to the Software, the license granted hereunder will not terminate
under section (i) of this paragraph due to such counterclaim.
A “Necessary Claim” is a claim of a patent owned by Facebook that is
necessarily infringed by the Software standing alone.
A “Patent Assertion” is any lawsuit or other action alleging direct, indirect,
or contributory infringement or inducement to infringe any patent, including a
cross-claim or counterclaim.
In brief, there are two key points:
- Facebook imposes restrictions on free patent licenses: You can’t Sue me for intellectual property infringement;
- The patents covered by the patent license are limited to the open source software itself, and are not included in the license for patents that may be infringed upon after the software is modified or used in conjunction with other technologies.
The legal background is murky
Even if the above two points are analysed, they should be weighed carefully, taking into account important factors in the context of reality:
- What happens if there’s no patent license?
- The license does not involve substantial consideration.
- Licensing involves a complex international legal environment.
In my opinion, there are three factors in the above background beyond the license terms that really complicate the validity of the license.
In terms of background factor 1, it is common in reality that open source licenses only involve copyright and avoid patents. This is a generally acceptable condition in the community. Failure to mention a patent is not the same as failure to grant a patent license, especially if the license does not state that the patent will cost additional money. There is a wonderful thing called “tacit permission” based on good faith or fair faith.
What is a “default license”? To put it simply, when you give someone something to use without stating that there is a charge for it, it is not very kind of you to charge someone for using it. In good faith or in good faith fairness, courts generally do not support acts that seem to set someone up to take money, but rather that when you give someone something to use without explicitly asking for money, you have given them “tacit permission” to use it for free.
If the author or provider of open source software, who is also the patentee of the relevant patent, provides a license that explicitly exempts royalties, and does not explicitly charge royalties when delivering the product to the user, an “implied license” shall be established. From the perspective of academic discussion, it is also called “exhaustion of patent rights”. But because no money has been collected, exhaustion of patent rights is more difficult to establish. I’m sticking with the “default license” route.
Unfortunately, the world of law is different from the world of software. In the software world, each piece of algorithm, given the conditions, will give you a clear result. That’s hard to do in the legal world. Will “tacit permission” be fully upheld by the judiciary? It’s really hard to say that different countries, or even a country at different times, may take different approaches to similar situations and give different judgments and directions. In countries with maritime law systems such as the United States, The United Kingdom and Australia, the consistency of precedents is relatively high. But China, Germany and other civil law countries, the change may be larger. Many issues to be discussed below are affected by judicial differences in different countries and will not be described below.
In short, the uncertainty is greater. Although the author lacks first-hand research on the actual cases of various countries, from the legal principle and reason, he tends to establish the patent under the “default license”, which is conducive to open source and free.
As far as background factor 2 is concerned, whether the license involves substantial consideration is an important factor. In fact, we are talking about licenses, which are different in nature from agreements, but some related factors can be considered by analogy. No material consideration means that no material payment has been made for a transactional gain, such as payment of a price. In this case, the license or agreement is more akin to a gift in nature and may not be firm on the rights and obligations of the parties concerned. For example, Facebook made its own software open source, paying for it but not charging users. Users are free to take Facebook’s open-source software and use it for free. It would be fundamentally unfair for Facebook or its users to incur significant obligations and costs as a result of this free activity, unless there is a specific reason. Therefore, from the judicial perspective, countries will consider the factor of “whether substantive consideration is involved”, but they will still adopt different ideas and give different judgments with different dimensions and directions. In short, The Patents and Patents of Facebook do not involve substantial consideration, so the judiciary will not arbitrarily subject parties to significant obligations that do not match consideration based on such licenses.
In short, there is still a lot of uncertainty. Although the author still lacks a primary study of actual precedents in various countries, in terms of legal principle and reason, the author still prefers Facebook Patents, which do not have substantial consideration and are less likely to bring significant obligations or losses to relevant parties, namely, the Patents are conducive to open source and free of charge.
Background factor 3 has been incorporated into the above discussion.
Given the discussion, the Patents and Licenses of Facebook are friendly to open source, and will not cause significant harm.
Facebook, face is bigger than cover
Take a look at the two key points of Facebook licenses, each of which has a subtle effect on whether “default licenses” still exist. In my opinion, it is likely that the situation would be worse if there were no Facebook Patents, but the negative effects are limited.
On key point 1, Facebook places a limitation on the free patent license: You can’t Sue me for intellectual property infringement.
Of course, the explicit validity is superior to the default validity, so I tend to think that the default validity is destroyed. But three factors will work in open source’s favor:
- When a user files a lawsuit against Facebook, the license ends, but the user still enjoys a free license for previous use. So, the initiative is still in the hands of the user, can choose a favorable situation. Users file lawsuits when they believe that more of their intellectual property is being used by Facebook than by the intellectual property they use in Facebook’s open source software, and make adjustments and preparations before litigation; If you are using more Facebook intellectual property and less Facebook intellectual property, you are still making a profit. Why bother Facebook? It should also be noted that Facebook’s condition is easier to circumvent: the patent can be transferred to a third party, the white glove, who can Sue Facebook. That way, you can continue to enjoy the free license and still do Facebook. This is legally valid.
- The likelihood of a single user suing Facebook and breaking a free license is low.
- Facebook risks abusing its intellectual property rights with this condition.
In fact, # 1 makes Facebook’s key point # 1 meaningless. Number 3 above, there is a lot of uncertainty.
For key point 2, the patents covered by the patent license are limited to the software itself and are not covered by the license for patents that may be infringed by modification of the software or by use with other technologies.
Keypoint 2 is actually a killer, more dangerous than keypoint 1, but less powerful in practice. The point is:
- Patents that Facebook explicitly disapproves: patents that may be infringed by software modifications or used in conjunction with other technologies can, in effect, tie up open source software. This is the most sinister part of his plan.
- Although Facebook explicitly excludes patents that could be infringed if the software is modified or used in conjunction with other technologies, it is only in broad terms. In fact, it is certainly common for users to modify the software or use it in conjunction with other technologies, and if Facebook does not alert users to the existence of these specific patents in a timely manner and has specific requirements for fees, I tend to agree that the license should still stand. Of course, uncertainty remains high. “Prompt notice to users” means a clear notice shall be given before the delivery of the software for patents already held before the delivery of the software; For patents obtained after the delivery of the software, the notification shall be made immediately after the patent is obtained.
In conclusion, while there are still a lot of complex uncertainties, I tend to think that Facebook Patents and licenses are generally friendly to open source and do not materially degrade compared to non-patent-related licenses. For Facebook, it may be more symbolic than substantive.
Apache Potential Risks
There is also a potential risk factor that Apache could put itself in a worse position by kicking out FB+PL.
Apache’s risk control measures are: “Apache projects will not be able to include or rely on Facebook Patents for code; The code that has been released, which is under the FB+PL license, needs to be replaced by August 31.” This is fine in theory, but there are many practical problems. In my opinion, it is easier to remove FB+PL license content: just remove the relevant code and replace it with code from other sources or self-written code. Because other sources or self-written code, you can basically ensure that the expression is different, thus avoiding copyright infringement. This is a realistic way to operate.
That probably won’t work to get around infringing Facebook’s patents. In short, copyright protects expression, patent protects idea. Circumvent expression form, try to be adjusted substantively from expression way namely can accomplish. It’s really hard to avoid ideas. In fact, it’s probably not clear exactly what Facebook’s patents are, and it’s even harder to circumvent them. The analysis work and the redesign of the code to the patent requirements of the professional is very high, the work is very complex, the workload is also very large.
In this case, the worst possible scenario for Apache would be to give up the FB+PL open source code and still be at high risk of infringing Facebook’s patents without Facebook’s express, implicit permission.
Apache’s radical open source
So, IN my opinion, Apache’s statement is a crisp defense of open source sentiment, and kicking off FB+PL may be a little more aggressive, though not entirely unreasonable in terms of avoiding uncertain risks.
(Photo: HuffPost)
About the author:
Li ke
Jihuizhijia Intellectual Property Consulting Company, Li Ke. Known as “Ke Ge”, he is an old patent agent and senior consultant of intellectual property rights. Born in the 1970s, he was an ox. He was slow but steady.