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<div class="moz-cite-prefix">On 8/30/2026 5:02 PM, McCoy Smith
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:aa9b1ab6-de31-4eb4-9a42-e7fbd80c32a7@lexpan.law">
<p>2. Specifically, the primary objection to OpenMDW-1.1 seems at
this point to be that it allows termination of the license upon
assertion of a copyright infringement claim against the licensed
work. We already know, I think at this point, that terminating
the patent license part of a license is an appropriate
termination event upon a patent assertion (lots of OSI-approved
licenses, including popular ones, do this), and in at least two
examples (GPLv3 & MPLv2), terminating the copyright license
part of the license is an appropriate termination event upon a
patent assertion. Why isn't *any* litigation against something
licensed open source (except, I suppose, litigation to ensure
compliance with the license itself) something that impinges upon
"the ability to do anything you want with the software"? Getting
sued (or even the threat of being sued) is an impediment to
doing what you want with a licensed work. Whether it be for
patent infringement, for personal injury, for breach of
warranty, or even copyright infringement. In fact, many open
source licenses disclaim warranties of non-infringement.
Meaning, you can't sue the licensor for a work that you received
under an open source license that results in a third party
asserting an IP claim against the work. Why isn't that warranty
disclaimer equally problematic?</p>
</blockquote>
I asked that question early on and Mike's answer was: <br>
<br>
<blockquote type="cite"><span
id="gmail-docs-internal-guid-bee04573-7fff-2004-8007-0793386f8fe2">
<p dir="ltr"
style="line-height:1.38;margin-top:0pt;margin-bottom:0pt"><span
style="font-family:Arial,sans-serif;color:rgb(0,0,0);background-color:transparent;font-variant:normal;vertical-align:baseline;white-space:pre-wrap"><i>The trigger tracks the realistic assertion risks for publicly released model materials, not exact alignment with the grant. Apache-2.0 grants both copyright and patent licenses but terminates on patent claims only, so a trigger narrower than the grant is common. The omitted IP regimes also fit poorly. Trade secrets are misappropriated rather than infringed, and a trade secret claim about openly published materials is close to a contradiction, since publication destroys secrecy. Sui generis database rights exist in only some jurisdictions. The drafting initially started with OpenMDW-1.0 using a patent trigger but was expanded in OpenMDW-1.1 to include copyright, where infringement suits about model materials realistically arise, without going as far as terminating for any \u201cintellectual property infringement\u201d claims as OCLC-2.0 does. </i></span></p>
</span></blockquote>
I confess I don't really follow this answer. I also don't understand
why termination isn't triggered by any lawsuit, IP-based or not, if
the goal is "hey, it's a fair exchange that you don't get to use my
product if you're going to sue me." Which leads me to then consider
other reasons why copyright is getting special treatment. Several
people have given different reasons why they think patent is OK but
copyright shouldn't be treated the same. <br>
<br>
<blockquote type="cite"
cite="mid:aa9b1ab6-de31-4eb4-9a42-e7fbd80c32a7@lexpan.law">
<p>To my mind, the carve out that is being argued here -- it is
only copyright claims against the licensor by the licensee that
it is impermissible to have the license try to prevent -- seems
solely driven by the perception that: a) AI models are rife with
copyright infringement; b) copyright infringement claims against
those models are inherently meritorious, or at least, ought not
be impeded; c) the calculus that many, many open source licenses
make re patents -- you can sue, or you can continue to use the
license, but not both -- shouldn't equally apply to copyrights;
d) AI model creators are trying to "game the system" in a way
that is somehow more of a risk than the "system gamers" of the
past (for example, the antagonist model you describe above)</p>
</blockquote>
I would quibble with that, and perceive your points as premised on
the assumption that there aren't valid copyright claims. But I do
not think that issue is well-enough settled to review a license with
that assumption. There is one lawsuit in Germany that held the
training was a copyright infringement, one lawsuit in the UK that
didn't reach the issue because the training was not done in the UK,
one lawsuit in the US that held it was a fair use, and another US
case that held begrudgingly it was a fair use only because the
plaintiff didn't have evidence of market harm (I guarantee later
plaintiffs will have the evidence). These are all first instance
court decisions, so each one individually doesn't have much weight.
There is a pending U.S. appeal, decision any day now, about whether
training violates open source licenses under a theory of removal of
content management information (not copyright infringement). So what
bothers me, and I read also in Richard's comments, is that you are
forcing a legal outcome, implicitly saying that developers don't
have a claim so their opposition is unreasonable, when many, many
strongly disagree with that position. <br>
<br>
Fast forward to a time where training is not a fair use and use of
copyrighted works for training requires lawful access and license
compliance (which I don't think is all that remote a possibility).
Does the copyright trigger still sound reasonable? <br>
<br>
Pam <br>
<br>
<div class="moz-signature">Pamela S. Chestek<br>
Chestek Legal<br>
4641 Post St.<br>
Unit 4316<br>
El Dorado Hills, CA 95762<br>
+1 919-800-8033<br>
<a class="moz-txt-link-abbreviated" href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a><br>
<a class="moz-txt-link-abbreviated" href="http://www.chesteklegal.com">www.chesteklegal.com</a></div>
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