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

[Josh Berkus]

On 9/10/26 6:07 PM, Pamela Chestek wrote:
> 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.

??? Speaking as a software developer, accidental infringing copying 
happens all the time.  Now, if a court finds the copying was accidental, 
generally the only penalty leveled is a prohibition on using the copied 
material.  But that doesn't make it not infringing copying.  And, with 
the growing usage of AI-assisted coding tools despite open legal 
questions, such accidental copying could even be quite substantial.

One thing that really bothers me about this line of argument is the 
implied assumption that the accused licensor must be guilty of 
infringement if they are being sued for it.  We'd have to consider, 
equally, the case where the defendant/licensor is NOT guilty of 
infringement -- and where the plaintiff might even be suing as a method 
of intimidation or coercion.

I don't find this whole line of argument to be useful to us in 
determining whether or not OpenMDW is open source.  Ultimately, these 
are all discussions of justice, which is not a requirement of the OSI 
definition, as the Ethical License people would be quick to point out.

I think it's going to be much more conclusive if we instead investigate 
the clause's effect as a restriction on use.  In general, the OSI has 
regarded restrictions on use needing to meet a higher bar than 
restrictions on distribution.  That doesn't mean that we haven't 
accepted them ever, though; both the various patent clauses and the CAL 
contain constrained restrictions on use.

The patent clauses have been justified by the desire to have open source 
software unburdened by patent threats.  Clearly, people felt that a 
certain level of reciprocity is required for that to work, even though 
it places a restriction on use, and having done some work in support of 
and against software patents, I can see the merit of that argument -- 
without antisuit reciprocity, the patent grant might be exposing the 
licensor to additional legal risk.

So, my question is, is antisuit reciprocity justified here, despite 
being a restriction on use?

The strongest argument against it is that OSS licenses have been 
licensing copyrighted material for 40 years, and this is the first time 
that anyone has proposed that it might be required that I know of.  A 
lesser argument against it is that this term could hamper a legitimate 
copyright suit by restricting the ability of the plaintiff to use the 
software itself as evidence.

The strongest argument in favor is the principle of openness of usage 
itself.  That is, that a licensee should not get the benefit of being 
able to use the software while attempting to deny everyone else that 
same benefit, including the licensor.  Of course, plaintiffs might not 
be trying to prevent usage, but rather trying to reverse relicensing or 
similar outcomes.

This feels like a complicated question to me, and one without an obvious 
right answer.

-- 
Josh Berkus