Fridgebook Inc.

For the sake of illustration, say you’re a fridge company “Fridgebook Inc.” who markets intelligent fridges. Your fridges have a screen that runs your proprietary application, and you use React for the UI.

Overnight, you hear that Facebook decides to move into the fridge industry, and they’ve announced the worldwide launch of their new product: “FBfridge”, in just 1 week.

In the hypothetical case that Facebook blatantly infringes some of your patents with ‘FBfridge’, what can you do?

Well, you cannot sue them immediately. You’re using React on the customer-facing app, remember?

If you sue them before migrating to something else (like vue.js), you will immediately lose the patent grant for React, and suddenly you’re in breach yourself, fighting against a potential lawsuit for illegal use of software, from an almost-$500-billion company, all by yourself.

And obviously, you don’t want to interrupt customer service.

So if you want to sue them, or at least hold any leverage for doing so, you will need to find a solution migrate away from React in record time.

That’s quite a pickle you’re in, right? It’s almost an extortionary situation. The solution? Not using React in the first place, and retaining your liberty to assert your rights.

NOTE: I am not an proponent nor an opponent to patents myself. I don’t have a clear stance on the issue. I’m just analysing the give-and-take balance here.

Facebook’s explanation

The last time I looked, the philosophy of Open Source revolved around communities where talented people contribute their grain of sand to — together — build better software and push tech even further.

That’s the spirit of the Apache Software Foundation, the Linux Foundation, etc. who are key references in the Open Source sphere.

So, why bring patents into Open Source?

Facebook has released an official explanation, which I’ll summarise for you in a few words:

Facebook receives a large number of meritless patent claims. They waste lots of resources fighting them. So they decided to capitalise on the success of their Open Source projects (like React) to introduce a trojan horse to deter users from filing — theoretically meritless — patent claims against them. They do not reciprocate this restriction.

But here is the important part. They claim that every other company that releases Open Source software should do the same.

[UPDATE: Here I analyse what other large companies adopt this license model. Hint: not many, just 2.]

Unfortunately, this is not going to work, and would eventually lead to a closed-source industry again, for several factors:

It requires consensus across the largest players in the market, who hold real arsenals of patents as leverage against competitors (see image below). Suddenly those arsenals would be valued at $0. Arriving to that consensus is highly improbable. As long as one rogue company doesn’t join, the rest will need to keep “their guards/patent arsenals up”. If all giants agreed to open source under the “BSD + patents” scheme, cross-adoption would grind to a halt. Why? If Google released Project X under “BSD + Patents”, and Amazon really liked it, rather than adopting it and losing their right to ever sue Google for patents, they would go off and build it on their own. That would mean that communities will not form around these products. Communities are the fuel and the incentive for open sourcing products. If there is no chance of igniting a community, there is no reason to open source. Eventually, as the above situation happens over and over again, the giants will stop seeing value in open sourcing their products, and the industry would eventually fall into a closed-source model.

Facebook’s unethical use of Open Source philosophy

Patents protect ideas and inventions. In most cases, patent assertion cases are not black or white — win or lose. Infringement evaluation is complex and costly. A lawsuit can cost hundreds of thousands or millions to file and pursue. You might have a 85% confidence that FB violated a patent of yours, but to even pursue it it’s going to cost you a lot of money.

If on top of that, you will need to invest to migrate away onto a different frontend framework first, and make sure that all your customers are using your new product version (what if you’re using React Native? your users may not upgrade the apps at once!), before you can even file the lawsuit, do you think that’s an honest, ethical usage of open source philosophy?

Bottom line:

Open Source is not a “quid pro quo” trade. Open Source is about creating communities to build better software together. It should never be used as a marketplace to exchange rights.

In fact, Facebook itself is built on the pillars of Open Source software with permissive licenses.