<div dir="ltr"><div dir="ltr"><div><span style="background-color:transparent">On Wed, Aug 26, 2026 at 7:59\u202fPM Pamela Chestek <<a href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a>> wrote:</span></div></div><div class="gmail_quote gmail_quote_container"><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div><blockquote type="cite"><div dir="ltr">
</div>
</blockquote>
<p>The developer may just want to run the model, but with this
license they have to give up any infringement claim in return.
Your solution, with its prospective prohibition, is a much blunter
instrument than examining the facts of the case and evaluating
whether the plaintiff is acting in an inequitable way. Here, the
FOSS developer may be acting perfectly equitably but still
couldn't bring a claim. So it may be an over-correction for the
problem it is trying to solve.</p>
<p>At the end of the day I think we disagree on whose interests are
more important to protect and it's up to OSI to decide.</p></div></blockquote><div><span style="background-color:transparent">Regarding whose interests to protect, I struggle with an assertion that OSI is mandated to protect any particular side with more favorable <span class="Q6ibn ng" style="border-style:none;background:none">terms...</span> In the end, we're protecting the right to use, modify, and distribute intellectual property - all of which <span class="Asgive ng" style="border-style:none;background:none">are enabled by the OpenMDW-1.1.</span> I think there may be too many presumptions clouding this thread. FOSS developers are now or will be on both sides of the dockets McCoy linked to. That link shows over one hundred training suits in the US alone, and the top plaintiffs are the largest copyright holders in the world: news organizations, studios, music <span class="Q6ibn ng" style="border-style:none;background:none">labels,</span> stock photo companies. They <span class="Asgive ng" style="border-style:none;background:none">will sue developers and the companies they develop for too </span>if given the opening, all while using models developers produce. I sense a presumption in parts of this thread that model publishers are solely large technology companies, and claimants are individual developers - that\u2019s not the reality I see.</span></div><div><br></div><div>If OpenMDW-1.1 were widely adopted... I want to flag a factual premise in the hypothetical, because it flips the conclusion. In a world of proprietary licenses and OpenMDW, the proprietary alternative does not preserve the developer's claim. The NVIDIA Open Model License terminates on copyright or patent litigation. The Llama license terminates on any IP claim, including claims about outputs, and adds use restrictions as well. Most bespoke model licenses with substantial real-world use that I am aware of are broader than OpenMDW-1.1 on this point - except for maybe RAIL-M, which terminates solely on patent infringement. So I don't think a developer would be driven to a proprietary model to preserve a claim; the proprietary model is (I think) almost always worse for them. The claim-preserving alternative is to use a model under Apache-2.0 or MIT, which OpenMDW does not displace or discourage. If OpenMDW succeeds, the ecosystem contains more open models with narrower termination terms than the bespoke licenses they replace, not fewer.<br><br>On your blunter instrument point, Apache-2.0 does not ask whether the patent plaintiff behaved equitably before its patent licenses terminate. GPL-2.0 section 4 terminates automatically on any violation, however innocent. The community chose bright-line rules because licensing at scale cannot run on after-the-fact equity (which is inevitably subjective). A rule everyone can read in advance is fairer than an equity standard applied later. The bluntness is symmetrical, knowable in advance, and it is how every defensive termination provision before this one has worked. Some users will decide they are <span class="Asgive ng" style="border-style:none;background:none">comfortable with</span> using a model under those terms, and some will decide they aren\u2019t, just as is the case today with the range of OSI-approved licenses.<br><br>The reverse configuration is just as real. There are small teams, communities, and nonprofits that want to publish models openly (whether trained from scratch, or improvements on other existing models) and cannot underwrite litigation from well-resourced plaintiffs who could use their model while suing over it. We have already seen a well-intentioned, copyright-respecting model publisher decline to move forward solely because of this exposure. Additionally, the fact that FOSS code was used in training does not mean every developer holds a claim against every model. McCoy said it already but, nobody knows yet. That uncertainty is precisely what a small publisher cannot underwrite, and it is why the realistic alternative to OpenMDW-1.1 is not Apache-2.0. It is not publishing openly at all. I have real examples of this.<br><br>Suppose the OSI decided to publish a model trained on public domain materials, and a publishing company disputes the provenance of some of those works and sues, as some certainly would. Under OpenMDW-1.1, that publisher can sue the OSI with every remedy intact. The one thing it cannot do is keep using the OSI's model while telling a court that the model is unlawful. I do not think the ecosystem is better served by a rule where it can do both. Companies on both sides of use and publishing have run this calculation as well.<br><br>On NVIDIA. I cited its license as the structural origin of the copyright and patent trigger, not as a policy endorsement, and OpenMDW-1.1 adopted a narrower version.<br><br>Mike<br></div><div> </div></div></div>