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

[Pamela Chestek]

On 9/11/2026 9:35 AM, McCoy Smith wrote:
>
> On 9/11/2026 9:25 AM, Pamela Chestek wrote:
>>
>> I very carefully did not say that all copying was copyright 
>> infringement. But the license doesn't distinguish. Someone could 
>> intentionally and knowingly infringe copyright, slap this license on 
>> it, and restrict the ability of the wronged party to use their 
>> software or AI model/system. That's the scenario I am thinking about.
>>
>>
> If you truly believe that the model is something that is copyright 
> infringing of your copyrights, why would you continue to *want* to use 
> it?*
>
> *Putting aside the initial stages of using it as part of pre-trial 
> discovery as to whether there is a copyright claim extant, which -- as 
> I think Mike has pointed out based on the text of this license -- is 
> not a termination event.
>

You're putting the burden on the potentially wronged party to limit 
their choices rather than on the licensor to avoid wrongful conduct. I 
do not think open source licenses should be encouraging volitional 
wrongful conduct, whether or not at the expense of the wronged party. 
But that is my question to others - is there a justification for 
excusing a licensor from responsibility when they infringe copyright?

You are also assuming the licensee has knowledge that will allow them to 
make an informed choice, but that's not the reality. The OpenMDW-1.1 
licensee is asked to agree to the license without having any knowledge 
about whether it infringes the licensee's own work, and unless the 
training corpus is also open source, they will have no way of learning 
before agreeing to the terms of the license. It is therefore quite 
possible with AI that the infringed party won't know that their work is 
part of the training corpus until it's too late to change.

Pam


Pamela S. Chestek
Chestek Legal
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