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

[McCoy Smith]

On 9/1/2026 3:34 PM, Richard Fontana via License-review wrote:
> 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?
>
Litigation termination triggers seem to be the one area where the 
discussion is converging on: what sort of litigation can properly 
terminate grants in a license, and what grants can be terminated?

So: can patent litigation trigger termination? That's a fairly common 
trigger. Against what? The example above from the IBM public license 
(OSI-approved https://opensource.org/license/IPL-1.0) the trigger 
applies to any patent litigation "applicable to software." I think this 
sort of broad trigger is, to put it mildly, disfavored. What about 
what's in the currently pending ModelGo-Attribution-2.0 license:
"This License shall terminate immediately ... if You initiate any legal 
action against the Licensor alleging that the Licensed Materials and/or 
Derivative Materials infringe any patent worldwide."
I believe many feel that extending the trigger to Derivative Materials 
(i.e., things beyond that which the patent holder has licensed under the 
license) is also too broad (and most of the popular licenses explicitly 
or implicitly are not triggered by patent claims against derivative works.

As to Richard's question, I don't see where the trigger in OpenMDW-1.1 
is "concerning things having no connection to the software (or model, 
etc.) being licensed." OpenMDW-1.1's trigger says:
"If you file, maintain, or voluntarily participate in a lawsuit against 
any person or entity *asserting that the Model Materials directly or 
indirectly infringe any patent or copyright,* then all rights and grants 
made to you hereunder are terminated, unless that lawsuit was in 
response to a corresponding lawsuit first brought against you."

The license grants copyright and patent rights, and the trigger is a 
reciprocal assertion of those same rights, and both apply to the Model 
Materials, which is what the licensor licenses and the licensee is 
licensed to. And unlike, say, ModelGo-Attribution, the assertion in 
OpenMDW-1.1 must be against the "Model Materials" which are defined as 
"the materials provided to you under this agreement," not what you were 
licensed plus anything else that is subsequently created.

If people think that patent triggers are OK (and possibly that patent 
triggers can, as in MPLv2 & GPLv3, terminate other rights, like 
copyright), and copyright triggers are not, that's OK, and we've had 
people try to articulate why they believe it is philosophically 
different, but I'm not sure it leads to a slippery slope where *any* 
sort of trigger must therefore be permissible. And I wonder how that 
same rationale would deal with the ModelGo-Attribution-2.0 trigger.
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