A new "use" clause in the OSD

[Forrest J. Cavalier III]

Lawrence E. Rosen wrote:
> My preference is for a clause that is more general and doesn't list only
> the things we can think of today:
>
>    OSD #10: No open source license may limit or restrict
>    a person's rights to use the software that would be
>    available in the absence of a license, including their
>    fair use rights under the copyright law.

With that wording, it seems that the "DEPLOY" clauses in the
Affero GPL and the APSL 1.2 would be cause for OSD rejection.
(Which is fine with me.)

What about the licenses which revoke use rights if you
litigate for patent infringement?  For example the MPL 1.1
has such a clause (8.2) that rights in 2.1 terminate.
2.1 (a) reads 
    (a)  under intellectual property rights (other than patent or
    trademark) Licensable by Initial Developer to use,
    reproduce, modify, display, perform, sublicense and
    distribute the Original Code (or portions thereof) with or
    without Modifications, and/or as part of a Larger Work; and

So, if I litigate, can I still use, display, and perform the
software?  (Which is another way of asking "can I possess a
copy of the software without needing to enter the contract
offerred (the license.)")

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