<div dir="ltr"><div dir="ltr"><br>Pamela-san and All,<br><br>I have been translating almost all of this discussion into Japanese as I work through it, and it has been a genuinely deep discussion. It has also been costing me a little sleep lately. :)<br><br>I think Pamela-san's latest message usefully identifies the philosophical divide, but Mike's clarification of the scope of the trigger makes me wonder whether the choice is quite as binary as it first appears.<br><br>Mike has now clarified that "indirectly" in Section 5 is intended to refer to secondary liability, such as a claim that making, using, or distributing the Model Materials contributes to infringement by others. He also clarified that OpenMDW-1.1 does not reach back to artifacts used in creating the model unless those artifacts are themselves included in the subsequently published Model Materials.<br><br>That distinction matters to me.<br><br>A claim that copyrighted material was unlawfully acquired or copied during training is not, by itself, the same as a claim that the resulting Model Materials directly or indirectly infringe copyright. So, on Mike's stated interpretation, the picture in which an ordinary creator sues merely over unauthorized use of their work in training and therefore loses the OpenMDW license seems broader than the intended scope of the trigger.<br><br>The trigger is instead directed at claims against the licensed Model Materials themselves, whether as direct infringement or under a theory of secondary liability. And when I look at that narrower relationship, I still have difficulty finding a reason why copyright should be categorically different from patent.<br><br>Suppose the copyright holder of novel A is using model X under OpenMDW, and then sues the provider asserting that model X itself infringes the copyright in novel A. The copyright claim does not disappear. The plaintiff remains free to pursue the claim and seek whatever remedies are available. What terminates are the OpenMDW grants the plaintiff received with respect to those Model Materials.<br><br>In that situation, I am not sure Open Source principles require the plaintiff to continue receiving permission to copy, modify, and distribute the same Model Materials that the plaintiff is asserting are infringing. I also do not think recognizing this necessarily leads to the broader position that any legal claim involving licensed materials may properly trigger termination.<br><br>Yokoi-san's question and Mike's answer help here as well. OpenMDW grants rights relating to copyright, patent, database rights, and trade secrets, but database-right and trade-secret claims do not trigger termination. Mike explained that the trigger was not designed simply to mirror every right in the grant, but rather around the realistic litigation threats faced by openly published model materials.<br><br>So perhaps the limiting principle need not be either "patents are historically special" or "any claim against licensed materials may trigger termination." Richard-san's historical point may explain why patent termination developed first, but I am not sure that history by itself establishes a categorical boundary for what may be acceptable today.<br><br>I am increasingly inclined toward a more general principle:<br><br>A defensive termination provision may be acceptable where the assertion is directed at the licensed subject matter itself, provided that the scope and consequences of the termination are reasonably related and proportionate to that assertion.<br><br>This would not make every type of litigation a permissible trigger. It would instead ask whether there is a sufficiently close nexus between the assertion and the licensed subject matter, and whether the termination goes no further than is reasonably justified by that assertion. To me, that seems more durable than drawing the line solely according to whether the asserted right is a patent or a copyright.<br><br><span class="gmail_signature_prefix">--</span><br><div dir="ltr" class="gmail_signature"><div dir="ltr"><div>Shuji Sado</div><div>Chairman, Open Source Group Japan<br><a href="https://opensource.jp/" target="_blank">https://opensource.jp/</a><br>English blog: <a href="https://shujisado.org/" target="_blank">https://shujisado.org/</a></div><div>Japanese blog: <a href="https://shujisado.com/" target="_blank">https://shujisado.com/</a></div></div></div></div><br><br><div class="gmail_quote gmail_quote_container"><div dir="ltr" class="gmail_attr">2026/9/3 8:46 Pamela Chestek <<a href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a>>:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><u></u>
<div>
<div>On 9/2/2026 3:39 PM, McCoy Smith wrote:<br>
</div>
<blockquote type="cite">
<div>On 9/1/2026 3:34 PM, Richard Fontana
via License-review wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">
<div dir="ltr">
<div 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" target="_blank">josh@berkus.org</a>>
wrote:</span></div>
</div>
<div class="gmail_quote">
<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>
</div>
<div 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 style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div 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 style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div 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 style="font-family:arial,helvetica,sans-serif"><br>
</div>
<div 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 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><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><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><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><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>
</div>
</div>
</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 href="https://opensource.org/license/IPL-1.0" target="_blank">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>
</blockquote>
<p>I believe we are seeing a philosophical divide. I wouldn't
consider the more expansive view a slippery slope, but it is more
generous to the licensor because of the philosophical
underpinnings.</p>
<p>On one side we have the view that, if you use the fruit of my
labor, it's only fair that in exchange you not sue me. If that's
the accepted rationale for the trigger, then as a matter of logic
it should be a valid position for any kind of claim against the
licensed materials, whether copyright, trade secret, patent,
database, moral rights, etc. The further extension that Richard
identified was that any claim against the licensor, i.e., what
Facebook's BSD + Patent license tried to do, could also be fair
game. That could be a slippery slope, but I don't think anyone is
advocating for this expansion.</p>
<p>The other side of the divide is the one that believes patents are
a special case with logic that doesn't extend beyond patents, as
articulated in different ways by different people for different
reasons.</p>
<p>So the question is -- which is the better path?</p>
<p>Just to clarify a statement you made, the OpenMDW grants patent,
copyright, trade secret and database rights, but only infringement
of the patent and copyright rights are a trigger. </p>
On the ModelGo license question about Derivative Works, I don't
think that's particularly relevant to this license, because the
OpenMDW license doesn't take that position. It might be easier to
just stick to the issues presented in the OpenMDW license.
<p>Pam</p>
<p><br>
Pamela S. Chestek<br>
Chestek Legal<br>
<a href="https://www.google.com/maps/search/4641+Post+St.+%0D%0A++++++Unit+4316+%0D%0A++++++El+Dorado+Hills,+CA+95762?entry=gmail&source=g">4641 Post St.</a><br><a href="https://www.google.com/maps/search/4641+Post+St.+%0D%0A++++++Unit+4316+%0D%0A++++++El+Dorado+Hills,+CA+95762?entry=gmail&source=g">
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