[License-review] For Approval: OpenMDW License Agreement, versions 1.1 (OpenMDW-1.1)
Pamela Chestek
pamela at chesteklegal.com
Fri Sep 11 01:07:28 UTC 2026
I would like to thank Yuta-san for their insightful view on the
termination provision, which I find helpful. I would also like to build
on what Joshua wrote below.
What I find distinguishable about a termination of the copyright license
versus the patent license is that copyright infringement doesn't happen
by accident. There is no copyright infringement without deliberate,
knowing copying. Someone may have made the judgment call that the
copying is lawful, and therefore not an infringement, but it was
nevertheless intentional conduct.
I do find it inconsistent with my understanding of open source and the
open source community that someone who intentionally committed a
wrongful act should be allowed to avoid the consequences of that act. I
raised this point early on and no one responded to give a reason why
this intentional conduct was innocent enough that the withdrawal of the
license, in Joshua's words, is a price that a licensor can demand in
exchange for the use of their work. We expect members of the open source
community to act ethically, but this provision allows deliberate,
intentionally, willful wrongdoers to escape some degree of
responsibility for their choices merely by choosing this license. This
is not an AI vs. software issue, this is true if the license is used for
software alone, as it can be. I don't understand why that is acceptable
in a license and would very much like to understand from others why they
think it is.
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
On 9/3/2026 8:26 PM, Joshua Gay via License-review wrote:
> 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 <tel:(919)%20800-8033>
> pamela at chesteklegal.com
> www.chesteklegal.com <http://www.chesteklegal.com>
>
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>
> --
>
>
>
> *Joshua Gay*
>
> Sr. Manager SA Open Source Community and Infrastructure
>
> +1 617-966-9792 | standards.ieee.org <http://standards.ieee.org/>
>
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