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

Fri Sep 4 03:26:49 UTC 2026

Respectfully, I have serious concerns with where this conversation is
going.

I think the "fruit of my labor" framing obscures why patent termination has
traditionally been accepted in open-source licenses.

If the principle were simply that a licensor may demand "you may use my
work only if you do not sue me," well then, sure, Pamela is right that
there would be no logical stopping point. The same rationale could justify
termination for copyright, trademark, contract, privacy, employment, or
almost any other claim the licensor considers threatening.

But that cannot itself be the open-source rationale, because it treats the
licensor's reason for imposing a condition as sufficient reason for OSI to
accept it. Those are separate inquiries:

   1.

   Every restrictive condition can be characterized as the price a licensor
   demands in exchange for use of its work.
   2.

   Open-source review must still determine whether imposing that price is
   consistent with the freedoms the license is supposed to carry to users.

The historical justification for patent termination is much narrower. A
copyright license alone may not provide practical freedom to make, use, or
distribute software because patents can independently prohibit those same
activities. . . . The patent grant closes that gap.

A termination provision tied to patent litigation can protect the resulting
patent peace by withdrawing the patent grant from a recipient that enjoys
it while asserting patents against the covered work. Apache-2.0 illustrates
that relationship directly: the patent grant and termination provision
appear in the same section, and covered patent litigation terminates the
patent licenses granted for that Work. Some approved licenses impose
broader consequences, but that shows that OSI has sometimes implemented the
patent exception broadly. It does not establish a general principle that
any claim concerning licensed material may terminate the license.

Mike's clarification narrows the copyright claims covered by OpenMDW. A
claim based only on the use of copyrighted material during training would
not trigger termination unless the claimant also alleges that the resulting
Model Materials directly or indirectly infringe. That is an important
limitation, but it does not answer the underlying question. Even on that
narrower reading, a copyright holder may be asking a court to decide
whether the Model Materials incorporate or reproduce its protected
expression without authorization and whether the distributor had the right
to publish what it purported to license.

How do OpenMDW responds to that claim? By terminating every grant the
claimant received under the license! Termination occurs upon filing or
maintaining the claim, before its merits have been determined, *and the
claim may be brought against any person or entity rather than only the
licensor!* (Or at least, that is how I am reading it.) The copyright claim
remains available, but pursuing it creates additional potential liability
for the claimant's continued use, modification, or distribution of the
Model Materials. The provision therefore increases the cost of obtaining a
decision about whether those materials were lawfully published in the first
place.

Calling copyright litigation a "real threat" explains why model publishers
would want that protection. It does not establish why using an open-source
license to provide that protection is acceptable. Many kinds of litigation
present real threats to licensors. If the existence of a serious threat
were itself sufficient, the licensor's interest in avoiding litigation
would become the measure of what conditions an open-source license may
impose.

Nexus and proportionality (and I must admit, my confidence is not as strong
on this, so please correct me if I am getting this wrong) may help evaluate
the boundaries of an otherwise justified termination provision, but they do
not supply the missing justification. That is, if I am understanding this
correctly, a nexus tells us that the lawsuit concerns the Model Materials,
but it does not tell us why bringing that lawsuit may properly result in
the loss of every permission to use them. On the other hand,
proportionality requires examining the consequence as well as the trigger,
and immediate termination of every grant upon filing a claim against any
person is not proportionate merely because the claim concerns those
materials.

The question is therefore not whether copyright litigation poses a real
threat to model publishers. I think we all concede that it can. The
question is: what open-source principle permits a license to respond to
that threat by terminating every grant to the claimant?  And, patent
precedent cannot answer that question unless its patent-specific
justification also applies to copyright.

And, I have not yet seen an explanation of why it does. Unless that
explanation can be supplied, the fact that copyright litigation threatens
model publishers remains a reason why publishers want the condition, not a
reason for OSI to accept it as a reasonable open-source condition.

Best,

Josh

Joshua Gay
Sr. Manager, Open Source Community and Infrastructure
IEEE SA

On Thu, Sep 3, 2026 at 5:56 PM Shuji Sado <shujisado at gmail.com> wrote:

>
> Pamela-san and All,
>
> I have been translating almost all of this discussion into Japanese as I
> work through it, and it has been a genuinely deep discussion. It has also
> been costing me a little sleep lately. :)
>
> I think Pamela-san's latest message usefully identifies the philosophical
> divide, but Mike's clarification of the scope of the trigger makes me
> wonder whether the choice is quite as binary as it first appears.
>
> Mike has now clarified that "indirectly" in Section 5 is intended to refer
> to secondary liability, such as a claim that making, using, or distributing
> the Model Materials contributes to infringement by others. He also
> clarified that OpenMDW-1.1 does not reach back to artifacts used in
> creating the model unless those artifacts are themselves included in the
> subsequently published Model Materials.
>
> That distinction matters to me.
>
> A claim that copyrighted material was unlawfully acquired or copied during
> training is not, by itself, the same as a claim that the resulting Model
> Materials directly or indirectly infringe copyright. So, on Mike's stated
> interpretation, the picture in which an ordinary creator sues merely over
> unauthorized use of their work in training and therefore loses the OpenMDW
> license seems broader than the intended scope of the trigger.
>
> The trigger is instead directed at claims against the licensed Model
> Materials themselves, whether as direct infringement or under a theory of
> secondary liability. And when I look at that narrower relationship, I still
> have difficulty finding a reason why copyright should be categorically
> different from patent.
>
> Suppose the copyright holder of novel A is using model X under OpenMDW,
> and then sues the provider asserting that model X itself infringes the
> copyright in novel A. The copyright claim does not disappear. The plaintiff
> remains free to pursue the claim and seek whatever remedies are available.
> What terminates are the OpenMDW grants the plaintiff received with respect
> to those Model Materials.
>
> In that situation, I am not sure Open Source principles require the
> plaintiff to continue receiving permission to copy, modify, and distribute
> the same Model Materials that the plaintiff is asserting are infringing. I
> also do not think recognizing this necessarily leads to the broader
> position that any legal claim involving licensed materials may properly
> trigger termination.
>
> Yokoi-san's question and Mike's answer help here as well. OpenMDW grants
> rights relating to copyright, patent, database rights, and trade secrets,
> but database-right and trade-secret claims do not trigger termination. Mike
> explained that the trigger was not designed simply to mirror every right in
> the grant, but rather around the realistic litigation threats faced by
> openly published model materials.
>
> So perhaps the limiting principle need not be either "patents are
> historically special" or "any claim against licensed materials may trigger
> termination." Richard-san's historical point may explain why patent
> termination developed first, but I am not sure that history by itself
> establishes a categorical boundary for what may be acceptable today.
>
> I am increasingly inclined toward a more general principle:
>
> A defensive termination provision may be acceptable where the assertion is
> directed at the licensed subject matter itself, provided that the scope and
> consequences of the termination are reasonably related and proportionate to
> that assertion.
>
> This would not make every type of litigation a permissible trigger. It
> would instead ask whether there is a sufficiently close nexus between the
> assertion and the licensed subject matter, and whether the termination goes
> no further than is reasonably justified by that assertion. To me, that
> seems more durable than drawing the line solely according to whether the
> asserted right is a patent or a copyright.
>
> --
> Shuji Sado
> Chairman, Open Source Group Japan
> https://opensource.jp/
> English blog: https://shujisado.org/
> Japanese blog: https://shujisado.com/
>
>
> 2026/9/3 8:46 Pamela Chestek <pamela at chesteklegal.com>:
>
>> On 9/2/2026 3:39 PM, McCoy Smith wrote:
>>
>> 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.
>>
>> I believe we are seeing a philosophical divide. I wouldn't consider the
>> more expansive view a slippery slope, but it is more generous to the
>> licensor because of the philosophical underpinnings.
>>
>> On one side we have the view that, if you use the fruit of my labor, it's
>> only fair that in exchange you not sue me. If that's the accepted rationale
>> for the trigger, then as a matter of logic it should be a valid position
>> for any kind of claim against the licensed materials, whether copyright,
>> trade secret, patent, database, moral rights, etc. The further extension
>> that Richard identified was that any claim against the licensor, i.e., what
>> Facebook's BSD + Patent license tried to do, could also be fair game. That
>> could be a slippery slope, but I don't think anyone is advocating for this
>> expansion.
>>
>> The other side of the divide is the one that believes patents are a
>> special case with logic that doesn't extend beyond patents, as articulated
>> in different ways by different people for different reasons.
>>
>> So the question is -- which is the better path?
>>
>> Just to clarify a statement you made, the OpenMDW grants patent,
>> copyright, trade secret and database rights, but only infringement of the
>> patent and copyright rights are a trigger.
>> On the ModelGo license question about Derivative Works, I don't think
>> that's particularly relevant to this license, because the OpenMDW license
>> doesn't take that position. It might be easier to just stick to the issues
>> presented in the OpenMDW license.
>>
>> Pam
>>
>>
>> Pamela S. Chestek
>> Chestek Legal
>> 4641 Post St.
>> <https://www.google.com/maps/search/4641+Post+St.+%0D%0A++++++Unit+4316+%0D%0A++++++El+Dorado+Hills,+CA+95762?entry=gmail&source=g>
>> Unit 4316
>> <https://www.google.com/maps/search/4641+Post+St.+%0D%0A++++++Unit+4316+%0D%0A++++++El+Dorado+Hills,+CA+95762?entry=gmail&source=g>
>> El Dorado Hills, CA 95762
>> <https://www.google.com/maps/search/4641+Post+St.+%0D%0A++++++Unit+4316+%0D%0A++++++El+Dorado+Hills,+CA+95762?entry=gmail&source=g>
>> +1 919-800-8033 <(919)%20800-8033>
>> pamela at chesteklegal.com
>> www.chesteklegal.com
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>
>
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-- 

*Joshua Gay*

Sr. Manager SA Open Source Community and Infrastructure

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