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<div class="moz-cite-prefix">On 9/1/2026 3:34 PM, Richard Fontana
via License-review wrote:<br>
</div>
<blockquote type="cite"
cite="mid:CAC1cPGwkRamwK7cXtEw+5nH8-W2UpjboL1iko-L2sNLV2So1Jg@mail.gmail.com">
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<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif"><span
style="font-family:Arial,Helvetica,sans-serif;background-color:transparent">On
Tue, Sep 1, 2026 at 5:56\u202fPM Josh Berkus <<a
href="mailto:josh@berkus.org" moz-do-not-send="true"
class="moz-txt-link-freetext">josh@berkus.org</a>>
wrote:</span></div>
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<blockquote class="gmail_quote"
style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
I'll stand by my claim, though, that any argument that can
be made <br>
against the principle* of a copyright antisuit provision
applies equally <br>
to a patent one. And that if OSI decides that the former
isn't <br>
OSI-compliant, then the latter isn't either, and we're going
to need to <br>
revisit a lot of licenses.<br>
</blockquote>
<div><br>
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<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif">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?</div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif">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". </div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif">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? </div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif">The IBM
Public License says:<br>
<br>
"<span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px">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."</span></div>
<div class="gmail_default"
style="font-family:arial,helvetica,sans-serif"><span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px"><br>
</span></div>
<div class="gmail_default" style=""><font color="#58595b"
face="Roboto, Helvetica Neue, Helvetica, Arial, sans-serif"><span
style="font-size:14px;background-color:rgb(247,247,247)">Assuming
the OSI would consider this acceptable in an open source
license today, what if instead it said:<br>
<br>
"</span></font><span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px">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."</span></div>
<div class="gmail_default" style=""><span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px"><br>
</span></div>
<div class="gmail_default" style=""><span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px">Surely
that would not be okay ... would it?</span></div>
<div class="gmail_default" style=""><span
style="background-color:rgb(247,247,247);color:rgb(88,89,91);font-family:Roboto,"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:14px"></span><span
style="white-space: pre-wrap">
</span></div>
<br>
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</blockquote>
<p>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?</p>
<p>So: can patent litigation trigger termination? That's a fairly
common trigger. Against what? The example above from the IBM
public license (OSI-approved
<a class="moz-txt-link-freetext" href="https://opensource.org/license/IPL-1.0">https://opensource.org/license/IPL-1.0</a>) 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:<br>
"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." <br>
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.</p>
<p>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:<br>
"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."</p>
<p>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.</p>
<p>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.</p>
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