But as Alonzo Harris, the cynical detective in “Training Day” explained, “It’s not what you know, it’s what you can prove.” Often in M&A transactions, especially with regard to open source, the facts can be less significant than the comfort of the buyer. It would not be surprising if some acquirers were to become more skittish when encountering instances of the Facebook license in a target’s open source inventory, putting the target in the undesirable position of trying to explain away the acquirer’s discomfort. If the acquirer is a Facebook competitor with a large patent portfolio, the task of convincing may become all the more daunting. (The Facebook license’s absence from the list of approved licenses at the Open Source Initiative may add further to the uneasiness.)
And the skittishness may not be unfounded for large companies with unwieldy affiliated divisions that do not do the best job communicating with each other. One division could sue a competitor for infringing its patent, only to find out deep in discovery that a Facebook affiliate provided the infringing materials. All the while, an unrelated division could have been using a library covered by the Facebook license for which Facebook holds a valid patent, yet the patent license from Facebook automatically terminated when the other division filed the infringement suit. That may be a fantastical scenario, but it may be one on the mind of an acquirer.
It may take some time to understand whether and how any of these real or imagined concerns factor into M&A transactions. But we do know that more people are now mindful of the Facebook license.