Is it possible to hack the patent system to make patents unusable in the tech industry, like copyleft hacked patent law?

The word “copyleft” arises from a clever hack by Richard Stallman who used the laws relating to copyright — a statutory device to incent creativity by granting limited monopolies to creators — to create a world where creators are incented to share instead of monopolise their work. 

Since the Berne Convention makes all creative works the automatic sole property of their creator, the only way others can use it in any way until the monopoly expires is with the express permission of the creator of the work, who is said to hold the copyright. Copyleft grants everyone receiving the work an unlimited license to use, improve and share it, but only on the condition they grant the same conditional rights to every recipient. Copyleft thus makes more and more works freely usable as more and more people improve them.

Could we do the same thing to subvert patent law? It seems that’s at least part of the motivation behind the use of a controversial combination of the BSD open source copyright license and a broad patent grant by Facebook. A few years ago they silently standardised on releasing all their open source projects — including popular codebases like RocksDB storage engine and the React.JS user interface framework — under the venerable 3-clause BSD license supplemented by a unilateral grant to any of Facebook’s patents necessary to use the software.

While that initially sounds uncontroversial and generous, the patent grant also included an aggressive termination clause that removed any grant of patent rights in the event of patent litigation. That too may sound unremarkable – after all, the Apache and Mozilla licenses include termination provisions, as do most other modern open source licenses. But Facebook’s version goes much further than another.

The termination clause in the Apache license also removes patent grants in the event a company initiates patent litigation against the project. But the trigger for termination is limited to the code at hand — you have to sue an Apache contributor over the Apache project and the patent grants you lose are those related to the project. Losing licenses would mean the company you are attacking could then counter sue for the infringement of the patents that were previously licensed to you. That sounds a fair deal.

By contrast, Facebook’s termination clause is triggered by patent action of any nature, related or unrelated to the project at hand (it originally triggered even on self-defensive patent litigation where Facebook was the aggressor, but that was removed in a revision a while back). It’s also triggered not just by action against Facebook, but also action against its subsidiaries and partners, and also by action against members of the open source community working on the project at hand. It’s not just you that can trigger the clause – any of your subsidiaries and agents can also make it happen.

So imagine you’re a European company and your American distributor takes a patent potshot at another company who are intentionally using your distributor’s patents patents without a license. If they happen to be a React.JS community member or a Facebook partner, you will lose all your patent grants from Facebook, even though neither you nor they are involved in the action. You’ll then risk patent litigation by Facebook.

Facebook defend their license combo by saying they have a need and a right to protect themselves from patents. They have little to say about the network effects of the license combo, but have clearly indicated they are an intentional byproduct. Facebook want to use their massive presence in the market to chill use of patents in the whole market. Their competitiors loudly say that’s a bad thing. That’s led to their employees at the Apache Software Foundation demonising Facebook’s license and banning from use on any Apache project.

But what would happen if they were to generalise their license combo and submit it to OSI for approval as a new license? Then we could all release software that, as it spreads, makes the granting of a patent license conditional on not using patents out of a fear of some remote, networked relationship in the community bringing down the fiery wrath of a giant corporation. I’d want to call such a license “PatentLeft” — a hack on patent law that renders patents useless in practice. Maybe that would be a good thing?

(A version of this article was published in the Linux Voice section of Linux Magazine issue 204)