[License-review] For Approval: OpenMDW License Agreement, versions 1.1 (OpenMDW-1.1)

[Pamela Chestek]

On 9/1/2026 6:58 AM, Michael Dolan wrote:
>
> 7. Finally, since several earlier points keep resurfacing as the 
> thread grows, and it appears people are not going back to read 
> everything (which is understandable), I thought I’d provide a short 
> summary of our positions as the steward, which we have already stated 
> in this thread. Perhaps this will help bring this debate to a close:
>
>
> (a) The termination provision does not preclude or waive any claim or 
> remedy, and it is merits-neutral. It presumes nothing about whether 
> any claim, patent or copyright, is valid, and it operates identically 
> either way, as patent retaliation always has. It does not prevent 
> anyone from filing any litigation on any topic. It ends only the 
> claimant's own license to the materials claimed to be infringing upon 
> filing such a lawsuit. Pre-litigation enforcement is also out of 
> scope. The license termination provision puts the parties back into 
> the same position they were in before any license was conveyed.
>
>
> (b) The trigger reaches only claims that the licensed materials 
> themselves infringe, the class of claims that attacks the subject of 
> the grant itself. Broader triggers, such as any IP claim or any 
> lawsuit, were considered and rejected.
>
> (c) Terminating copyright grants as a remedy appears in OSI-approved 
> licenses (e.g., MPL 1.1 §8.2, CDDL 1.1 §6.2, OSL 3.0 §10, CAL-1.0 
> §5.3), and OSI has approved a trigger broader than patent claims in 
> OCLC-2.0 §5.
>
>
> (d) OpenMDW does not relicense third-party code, and it doesn’t “grab” 
> third-party code into its scope. The grant conveys only rights the 
> providers hold or can pass through for the materials identified as 
> being provided, and third-party components keep their own licenses and 
> notices. Unlike other licenses, which may have narrower grants, the 
> grant is intended to encompass all possible rights a user of an 
> OpenMDW-license model may need to practice/use the model. This is 
> intentional and designed to overcome potential lack of clarity in 
> other licenses when used in an AI model context. For example, 
> Apache-2.0’s grants are centered on copyright via “the Work” which is 
> “the work of authorship” (copyright), and then the patent grant is 
> scoped to “the Work”.
>
>
> (e) “Model Materials” is transaction-scoped to the materials provided 
> to you under one agreement. Separate releases are separate agreements, 
> and there is no ever-expanding covered work. The definition's own word 
> "related" bounds the unit of materials concern that keeps coming up. I 
> understand that the OpenMDW is novel in the scope of Model Materials, 
> but honestly, for how many years have we debated “what is the Work” 
> under Apache-2.0 or “the Program” under EPL-1.0 without ever 
> questioning if they satisfy the OSD requirements?
>
>
> (f) The clearance paragraph is a risk-allocation disclaimer. The 
> license has one affirmative condition, notice retention, and one 
> termination mechanism, the litigation provision. Where this license 
> family intends a condition, it says so expressly. And licenses such as 
> §2(c) of EPL-1.0 and EPL-2.0 show that even ifsuch risk-allocation 
> terms were an explicit condition of the license grant (which they are 
> not for OpenMDW), an explicit condition would still not conflict with 
> the OSD.
>
>
> (g) We can clarify many of the concerns raised here with FAQ updates 
> stating these interpretations and publishing guidance for model 
> publishers that recommends enumeration of each release's Model Materials.
>
These are all statements of how you believe that the license should be 
interpreted. But a number of people have explained how a party or a 
court could find ways to construe it differently. As an example, you say 
in (f) that "the clearance paragraph is a risk-allocation disclaimer." 
But I previously pointed out, and you acknowledged, that it could be 
construed as an obligation on the part of the licensee. You have also 
acknowledged that some of the content could be double-licensed with the 
OpenMDW-1.1 license and the original third-party license, which is 
somewhat contrary to how you say the license operates in (d). So I would 
take all of these statements as what your intention was, not how the 
license actually operates. And the problem with trying to correct 
ambiguities with FAQs is that there is no requirement for a court to 
consider statements outside the four corners of the license itself, 
particularly when the author of the statements isn't a party to the 
lawsuit. So you can't count on FAQs to prevent an unintended interpretation.

Pam

Pamela S. Chestek
Chestek Legal
4641 Post St.
Unit 4316
El Dorado Hills, CA 95762
+1 919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
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