No it is not, and that is what so many people misunderstand about this. Plain BSD has an implicit patent grant to the extent needed to run the software. An explicit patent license overrides that implicit grant. Of course, that interpretation is still subject to what the courts say in a lawsuit.
Of course, you are right that legal and corporate should review such a license. And for any company that deals in patents (or has customers who deal in patents), the likely answer is "no way".
That assumption of an 'implicit' grant is quite tenuous. You have taken it as invalidated by a PATENTS file, what if instead of a PATENTS file Facebook legal had blogged that they don't believe in an implicit grant? Does that nullify the grant of patents? What if stated by a project contributor?
That's the conundrum for any open source project and the exposed danger of the BSD license.
I doubt some statement of opinion in some out-of-the-way place that did not accompany the software directly would hold up in court.
That said, your point on uncertainty is why many people prefer the Apache2 License or the GPL3 which have an explicit patent grant (but not a one-sided grant like in Facebook's PATENTS file).
No. The PATENTS portion of BSD+Patents does not nullify the BSD License. So you are no worse off than had Facebook simply licensed the code under the BSD License.
In 2005, Dan Ravicher explained[2] that, in the USA, recipients of software under the GNU GPL version 2 receive an implicied patent grant, based on the following US case law.
* De Forest Radio, 273 U.S. 236 (1927)
"No formal granting of a license is necessary in order to give it effect. Any language used by the owner of the patent, or any conduct on his part exhibited to another from which that other may properly infer that the owner consents to his use of the patent in making or using it, or selling it, upon which the other acts, constitutes a license."
* Hewlett - Packard Co. v . Repeat - O-Type Stencil Mfg. Corp. , Inc., 123 F. 3d 1445 (Fed. Cir. 1997).
"Generally, when a seller sells a product without restriction, it in effect promises the purchaser that in exchange for the price paid, it will not interfere wit h the purchaser's full enjoyment of the product purchased. The buyer has an implied license under any patents of the seller that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put."
* Bottom Line Mgmt., Inc. v. Pan Man, Inc., 228 F. 3d 1352 (Fed. Cir. 2000)
"Unless the parties provide otherwise, the purchaser of a patented article has an implied license not only to use and sell it, but also to repair it to enable it to function properly. This implied license covers both the original purchaser of the article and all subsequent purchasers"
That is not entirely true. As stated elsewhere, there is likely an implicit patent license provided by the BSD. The reasoning is basically, "we are [copyright] licensing this cod e to you to use, so [therefore] we must also be providing a corresponding patent license to use the code."
Legal scholars are mixed on that, and it hasn't been tested in court.
But that implicit license is certainly better than the explicit license in FB's code.
How is a theoretical (i.e. unproven in court), implicit license better than an explicit license you only lose in the event of patent litigation that you initiate?
There is a serious problem with the Facebook license. I've heard this and many other "it'll be ok because..." kind of statements in discussions about Facebook licensing. The problem is that there is no clear agreement as to what the ramifications are, and no real clarity offered by facebook after repeated efforts by the community to obtain it.
The only clarity they offer is that they have their license in place for litigation purposes.
For a personal project, everybody can make their own decisions. For a project involving a corporate entity or an institution, it is irresponsible to leverage any facebook licensed software without a legal review of the license. I'm not saying that it's bad. I'm not saying that it's good. I'm saying that however a laymen may interpret the license, there is a high chance of being wrong. Better to have the professionals review it and make a judgement call. I have seen many people state that their legal departments reviewed the license and have come back in some cases supporting the use of facebook software, in other cases denying the ability to use it. Even among professionals there seems to be disagreement.
There is a common understanding of many open source licenses. There is none surrounding facebook's.
I have asked ASF to have their lawyers make a public interpretation of the facebook BSD+Patents license for the betterment of the community, but the response was along the lines of "no lawyer would do that." Someone else might have better luck with the FSF. The FSF does support the idea of patent clauses, or at least at one point they did. I have seen nothing from them regarding the facebook license specifically though.
> For a project involving a corporate entity or an institution, it is irresponsible to leverage any facebook licensed software without a legal review of the license.
And this is a problem, because we all know how much of a huge pain in the ass it is to get any new license or legal issue relating to open source cleared with a big corporation's legal dept.
I think this is a pretty clear signal from Facebook that at least part of the company really doesn't care if people use Facebook open source or not. After all the work some in the company have done to promote Facebook open source, to great benefit to the company for recruiting and for synergy with other large company open source, that is a big surprise to me.
This kind of tone-deaf response from part of the company with the other half frustrated that it's causing so many problems reminds me more of how large old, moribund companies like IBM operate. It's a surprise that Facebook's already there, or at least starting to be.
Wow, that is pretty disingenuous. Clearly, BSD+Patents places some extra conditions on the BSD license, you don't have to be a lawyer to understand that. I mean, several people have provided the legal reasons elsewhere on this thread, but even the name "BSD PLUS Patents" should be a tip-off.
No, its not at all disingenuous. Facebook could have written the "Additional Grant of Patent Rights" (note: additional) to also terminate the copyright grant under the BSD license. But they did not:
https://github.com/facebook/react/blob/master/PATENTS
