<div dir="ltr">Hi Pam and All,<br><br><br>Thank you for walking through the scenarios. Let me try again with your own examples, and please tell me if I get any of this wrong.<br><br>On my earlier point: that was my reading of the definitions (I'm not a lawyer), and I may have stretched it. I think your reading is the better one. Licensor is the rights owner whose grant is in Section 2.1. This also settles "the" versus "a" for me: for this clause there is one counterparty. This license has no mechanism for a distributor to pass on patent rights of its own; every patent right it grants comes from the Licensor. If someone downstream has patented their improvement, that grant happens outside this license. So far as this clause is concerned, there really is just the one.<br><br>Your three cases, exactly as they operate:<br><br>- C sues User A, who only runs the model: C keeps the license.<br>- C sues User B, a distributor: C keeps the license.<br>- C sues the Licensor: C loses the license.<br><br>The license is one grant from one grantor, and the exchange inside it is bilateral. The Licensor grants the practice of the Licensed Materials and, by 2.1(a)(iii), of Derivative Materials too. The licensee's side of the exchange is not to turn a patent claim against the grantor. When the clause fires, the Licensor takes back the one thing that was given, from the one party who took it and then attacked the giver with it. The Derivative Materials part follows from the same place: 2.1(a)(iii) puts their practice inside the grant, so a claim that a Derivative infringes is a claim that the granted practice is unlawful.<br><br>Apache-2.0 looks different because its shape is different. Its patent licenses come from many contributors, and any claim about the work, against anyone, even a cross-claim, ends the patent licenses You hold. A single-grantor license has no such machinery, so we chose the narrower trigger. You lose the license only by suing the grantor; nobody loses anything for enforcing a patent against another user. Under OpenMDW-1.1, termination can follow a copyright claim, a suit you voluntarily joined rather than started, or a claim brought against anyone at all. Under MG-BY, the clause fires on one thing only: a patent suit you yourself initiate against the Licensor. It reaches nothing beyond what our own grant covers.<br><br>On OSD 5 itself. Everyone who holds the license holds it on the same terms and loses it the same way. I can't find a licensee who gets less than another licensee. The Licensor is not a licensee; it gives the license rather than holds it. Apache has the same asymmetry between a Contributor, who grants patent rights and can have them taken back, and a plain recipient, who grants nothing and so has nothing to lose. I haven't seen anyone call that discrimination. Our clause has that shape with one giver instead of many, and I don't see a classification of persons in it, which is what I understand OSD 5 to be about.<br><br>To press one point, respectfully: I am not aware that OSI has ever held that a patent-termination shield must protect everyone to satisfy OSD 5. That would be a new principle, and if the review establishes it, I will revise the clause accordingly. Thanks.<br><br><br>Best,<br>Moming<br></div><br><div class="gmail_quote gmail_quote_container"><div dir="ltr" class="gmail_attr">Pamela Chestek <<a href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a>> \u4e8e2026\u5e749\u670821\u65e5\u5468\u4e00 11:44\u5199\u9053\uff1a<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>
<p>Moming,</p>
<p>I'm not following what you're saying. As I understand McCoy's
point, it is this:</p>
<p>- Licensor is any contributor who added copyrightable content;</p>
<p>- User A is someone who is using Licensor's version of the
software but has not contributed any copyrightable content and is
not distributing the software;</p>
<p>-User B is someone who is using Licensor's version of the
software, has not contributed any copyrightable content, but is
distributing the software, who you are characterizing as a
sublicensor of Licensor's rights;</p>
<p>- User C is the person who owns the allegedly infringed patent. </p>
<p>===============</p>
<p>User C sues a Licensor for patent infringement - the license
terminates.</p>
<p>User C sues User A for for patent infringement - the license does
not terminate because User A is not a Licensor of anything, they
are just using the software.</p>
<p></p>
<p>User C sues User B for patent infringement - the license does not
terminate. First, characterizing User B as a sublicensor may not
be a correct assumption - why wouldn't User C say "no, I'm not a
sublicensee of User B, I'm a direct licensee of Licensor who I
haven't sued, so the license doesn't terminate"? But even assuming
User B is a sublicensor, it doesn't terminate the license. User B
is a sublicensor, not <b><i>"the </i></b>Licensor," i.e., the
"rights owner" per your definition, so the license doesn't
terminate.</p>
<p>That is the discrimination that I understand McCoy to be
describing. The license only terminates if User C sues someone who
contributed copyrightable content, because those are the only
people (or companies) who have a license that can be terminated.
Everyone else can still be sued for copyright infringement.</p>
<p>The use of the word "the" in "the Licensor" in the termination
section is problematic for another reason. The corpus may have
many licensors. I think the more natural reading is that only the
license from the person being sued terminates, not all of them. If
it said "any legal action against <b><i>_a_</i></b> Licensor
alleging that the Licensed Materials and/or Derivative Materials
infringe any patent worldwide" would terminate all of them. But
that doesn't solve the problem described above with mere users,
not contributors, being the defendant in the patent suit.</p>
<p>Pam</p>
<div>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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<a href="tel:(919)%20800-8033" value="+19198008033" target="_blank">+1 919-800-8033</a><br>
<a href="mailto:pamela@chesteklegal.com" target="_blank">pamela@chesteklegal.com</a><br>
<a href="http://www.chesteklegal.com" target="_blank">www.chesteklegal.com</a><br>
<br>
<br>
</div>
<div>On 9/18/2026 2:58 AM, Moming Duan
wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">Hi McCoy and all,<br>
<br>
<br>
OSD 5 says the license must not discriminate against any person
or group of persons. Here, Licensor is a role in the license,
not a person. And the license itself says how the role moves.
The Section 2.1 grant is sublicensable, and 2.2(a)(i) requires a
copy of this License to travel with every Distribution. Even the
definition of "Licensed Materials", things "Distributed by the
Licensor", only really works if each distributor is the Licensor
for what it distributes. So a licensee who passes the model or a
Derivative Material on is granting the license onward. It stands
as Licensor to the people it supplied, and a patent claim by
those people does trigger termination.<br>
<br>
About your May 2025 conclusion, I want to be precise. You wrote
then that this termination provision was not an OSD violation
but an uptake issue, and that conclusion was about the
Derivative Materials part, which is your Q4: <span style="background-color:transparent"><a href="https://lists.opensource.org/pipermail/license-review_lists.opensource.org/2025-May/005764.html" target="_blank">https://lists.opensource.org/pipermail/license-review_lists.opensource.org/2025-May/005764.html</a></span>
<div>
<div><span style="background-color:transparent">The OSD 5
question, whether the trigger should reach beyond the
Licensor, is new in this final call, and you yourself put
it as "arguably". So I read it as an open question rather
than a settled one, and not something to concede on my
own.</span></div>
<div><br>
It's true that a user who never distributed anything, and
sues another licensee, does not lose the license. That is
deliberate. The patent grant has one source, and the promise
not to assert runs to that source. A dispute between two
people who never granted each other anything is outside that
exchange.<br>
<br>
So my reading is that the clause, as written, does not
discriminate against any person or group, and I'd like to
keep the current wording.<br>
<br>
<br>
Best,<br>
Moming<br>
</div>
</div>
</div>
<br>
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