Facebook’s Patent License for React

Since this post is about legal matters, I should tell you I don’t speak for my current employer, any former employer, or anybody other than myself. I’m not a lawyer. If I were, there would be a way better disclaimer here that covered every possible way you could hurt yourself by applying my thoughts to your own legal situation.

(This essay was originally published on medium)

The status quo

People write software. Software is a creative work, covered by copyright. So by default only the copyright holder can copy and redistribute it. Anyone else has to be granted a license to do so. Facebook grants such a license for React.

But here’s where it gets complicated. Software is also covered by patents. Yes, I know the Supreme Court has always held that software is not statutory material for a patent, and that there’s no way a patent related to React would stand up under the precedents of Benson, Flook or Diehr. But law isn’t statute or Supreme Court precedent. Law is what happens to you in court. So software is covered by patents.

What this means is that your license to copy, modify and distribute software may not be enough. You may also need a license to “practice the invention” which many people think includes running the software on an actual computer. Software is a lot less useful if you can’t run it.

Improving the status quo

Facebook helps us out here:

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.

So now we can go ahead and run the software without worrying about accidentally infringing a patent. But what if we deliberately want to infringe a patent? Could we somehow integrate React software into our infringing activity so that this license covers it? It would be a free license for any Facebook patent. You must think I’m really devious to even imagine such a scenario. But actually I wasn’t the one who imagined it; Facebook’s lawyers did:

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.

Facebook’s lawyers are also concerned that this license robs them of the ability to counter-sue someone who initiates a patent suit against them:

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.

This is where all the controversy started. Suppose Facebook initiated a patent suit against your company. Then your company counter-sued using its own patents, because that’s everything software patents are good for: a deterrent to counter other software patents. Now all of a sudden Facebook terminates your right to a patent covering React. (To be clear, nobody knows whether such a patent exists because who wants to dig through tons of claim descriptions deliberately written to be obtuse?) Now you lose your right to run React and you’re depending on it everywhere.

To address this fear, Facebook added an exception for counterclaims:

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.

If Facebook wanted to sue you

Remember the status quo: If there’s a patent, you can be sued for using the software even if you’ve been given the rights to copy and redistribute it. The real reason I’m not worried is not that I’ve gone over every word in the patent license and can guarantee it means exactly what I’ve said above. The real reason I’m not worried is that I don’t see anything in the patent license that could make things worse than the status quo. I routinely use free software that doesn’t include a patent license. React is not worse.

If Facebook wanted to be devious and sue people for using their free software, they’d do it a lot more effectively by not granting a patent license at all, thus avoiding attention to the patent question in the first place. My impression of Facebook as a company is that it’s good at being devious; I would give it credit and say that this patent license is not a botched attempt at deviousness.

Facebook doesn’t want to sue you

Facebook seems good at acting in its own interest. For any company that wants to hire software engineers, initiating a software patent lawsuit would not be acting in its own interest. My impression from discussions in person and on line is that about 60% of software engineers are passionately opposed to software patents. About 30% are opposed but not passionately. They wouldn’t work for a company that initiated a software patent lawsuit partly because of their own beliefs and partly because of the grief they’d get from the 60%. Maybe 5% would take a good-paying job despite reservations. About 3% are neutral and 2% are pro-software-patent.

Facebook still wants to be able to hire software engineers. If they ever get to the point of not needing to hire or retain software engineers anymore, that’s when I would start worrying.