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

[Richard Fontana]

On Tue, Sep 1, 2026 at 5:56 PM Josh Berkus <josh at berkus.org> wrote:

> I'll stand by my claim, though, that any argument that can be made
> against the principle* of a copyright antisuit provision applies equally
> to a patent one.  And that if OSI decides that the former isn't
> OSI-compliant, then the latter isn't either, and we're going to need to
> revisit a lot of licenses.
>

This is clearly one of the questions the OSI needs to resolve: is there
something special about copyright? Or is there something special about
patent?

In terms of historical precedent, I think we can leave the long-abandoned
OCLC license aside as a likely case where the early OSI wasn't thinking
about things as carefully as the present-day OSI would (that's about as
charitable as I'm willing to be here). Having looked at the OCLC
license-discuss thread the other day, I don't think anyone paid any
attention to the litigation termination provision. I wonder actually if
some of the license-discuss participants noticed it but thought
"intellectual property" was synonymous with "patent", but I don't think any
of the participants were on the board at the time other than Russ Nelson. I
seriously think it's not beyond the realm of possibility that the OCLC
lawyers who *drafted* the license sincerely thought "intellectual property
infringement litigation" was synonymous with "patent infringement
litigation".

The OSI should also think about the other side of the question. If a
copyright trigger for license termination (including copyright license
termination) is okay in addition to a patent litigation trigger, what about
other kinds of claims? Trademark infringement? Trade secret? What about
claims concerning things having no connection to the software (or model,
etc.) being licensed? Shareholder litigation? Personal injury? Employment
discrimination?

The IBM Public License says:

"If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as of
the date such litigation is filed."

Assuming the OSI would consider this acceptable in an open source license
today, what if instead it said:

"If Recipient institutes copyright litigation against a Contributor with
respect to a copyright applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any copyright licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as of
the date such litigation is filed."

Surely that would not be okay ... would it?

Richard
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