<div dir="ltr">Hi Pam,<br><br><br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">Your response is quite troubling to me. I read it as saying that the disparate treatment of copyright owners versus mere users of the software is intentional.</blockquote><div><br></div><div>Thank you for being direct. I can see why my earlier response was troubling. I was trying to explain why the original trigger was limited to an action against the Licensor, but I did not fully consider what that limitation would mean in practice. I also treated the question of discrimination under OSD 5 as if it answered the separate concern you raised about OSI\u2019s review criterion.</div><br>I understand why you read it that way. The original wording did intentionally draw a line based on who the licensee sued: it covered a suit against the Licensor, but not a suit against another user. I did not mean that copyright owners should be treated as a favored class. More importantly, I should not have presented the fact that the same condition applied to every licensee as a complete answer to the concern about its effect.<br><br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">As Joshua Gay described in the OpenMDW thread, the motive for the patent termination provision was because patents threatened the singular goal of the open source license, which is unfettered freedom to use the software. In other words, the open source license grants virtually unlimited right to use the software, but a patent aggressor can stop that use with a patent claim. The response was to withdraw the patent aggressor's patent (and sometimes copyright) license to use the software. So I find the intentional maintenance of the ability to sue a user troubling, given the historical basis for the patent termination clause.</blockquote><br>I understand this rationale, and I also share your concern for protecting the Open Source commons and preserving users\u2019 freedom to use the licensed materials. My earlier response focused on the fact that MG-BY grants rights from a Licensor to its recipients, and I missed a case: a recipient could later acquire a patent and use it to sue another user of the model (please correct me if I\u2019m wrong, patent law is not my area of expertise). Under the original wording, that suit would not trigger termination because the defendant was not the Licensor. The recipient could keep its MG-BY patent license while asserting its patent against another user. My point that model publishers and users do not usually contribute back upstream does not answer that case.<br><br>When I described the narrower rule as a way to extend the commons, I meant that it would avoid making MG-BY a general restriction on patent disputes between users. I now see that this was incomplete: it could also leave other users exposed to a patent aggressor who keeps the license. I agree the patent-termination trigger should not depend on whether the defendant is the Licensor. The revised wording below applies to an action against any person or entity, while limiting the consequence to the patent license.<br><br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">I also note that the one of the requirements for new licenses is \u2018The license does not have terms that structurally put the licensor in a more favored position than any licensee.\u2019 This does put the licensor in a more favored position than a licensee.</blockquote><br>I agree this criterion is directly relevant. I still do not think the clause is discrimination under OSD 5: it is triggered by a patent action, not by a person\u2019s identity, field, or type of use. But that does not resolve your separate point. A condition can apply to all licensees and still raise the question of whether it structurally favors the Licensor. The revised trigger is broader because it applies regardless of who is sued, but I understand that OSI may still need to assess the remaining difference in how the clause applies to a licensee and the Licensor.<br><br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">I also don't understand why you are characterizing this license as a \u2018single-grantor license\u2019 and distinguish it from Apache on that basis. All licenses are \u2018single grantor,\u2019 Apache included, that is, a single contributor is granting a license to their own contribution. If you are saying that the Apache license may be a grant from multiple licensors because it may be sublicensing from inbound licensors, the same is true of the ModelGo Attribution License, which is also sublicensable. So I'm not following why you think that your situation is, can be, or should be different from how the Apache license works.</blockquote><br>You are right that \u201csingle-grantor\u201d does not distinguish MG-BY from Apache, and I should not have used it as the reason for different treatment. Both involve grants from contributors, and MG-BY is sublicensable too.<br><br>For comparison, the current wording is:<br><br><blockquote style="margin:0 0 0 40px;border:none;padding:0px">5. TERMINATION</blockquote><blockquote style="margin:0 0 0 40px;border:none;padding:0px">This License shall terminate immediately if You breach any material term and/or condition of this License, or if You initiate any legal action against the Licensor alleging that the Licensed Materials and/or Derivative Materials infringe any patent worldwide. Sections 3, 4 and 6 shall survive the termination of this License.</blockquote><br>Here is the revised TERMINATION:<br><br><blockquote style="margin:0 0 0 40px;border:none;padding:0px">5. TERMINATION</blockquote><br><blockquote style="margin:0 0 0 40px;border:none;padding:0px">This License shall terminate immediately if You breach any material term and/or condition of this License. <b>The patent license granted to You under this License shall terminate immediately if You initiate any legal action against any person or entity alleging that the Licensed Materials infringe any patent worldwide.</b> Sections 3, 4 and 6 shall survive the termination of this License.</blockquote><br>This keeps the existing rule that a material breach terminates the whole License. For patent litigation, it removes Derivative Materials as a trigger, applies regardless of who is sued, and ends only the patent license. <div>I believe this revision strikes a better balance and may make the license more attractive to potential adopters. The ModelGo licenses would not be what they are today without the feedback from everyone in the OSI community. Those discussions have also helped me continue to refine my understanding of Open Source, and I\u2019m sincerely grateful for that.<br><br><br>Best,<br>Moming<br></div></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\u670823\u65e5\u5468\u4e09 01:46\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>
Hi Moming,<br>
<br>
Your response is quite troubling to me. I read it as saying that the
disparate treatment of copyright owners versus mere users of the
software is intentional. As Joshua Gay described in the OpenMDW
thread, the motive for the patent termination provision was because
patents threatened the singular goal of the open source license,
which is unfettered freedom to use the software. In other words, the
open source license grants virtually unlimited right to use the
software, but a patent aggressor can stop that use with a patent
claim. The response was to withdraw the patent aggressor's patent
(and sometimes copyright) license to use the software. So I find the
intentional maintenance of the ability to sue a user troubling,
given the historical basis for the patent termination clause.<br>
<br>
I also note that the one of <a href="https://opensource.org/licenses/review-process" target="_blank">the
requirements for new licenses</a> is "The license does not have
terms that structurally put the licensor in a more favored position
than any licensee." This does put the licensor in a more favored
position than a licensee.<br>
<br>
I also don't understand why you are characterizing this license as a
"single-grantor license" and distinguish it from Apache on that
basis. All licenses are "single grantor," Apache included, that is,
a single contributor is granting a license to their own
contribution. If you are saying that the Apache license may be a
grant from multiple licensors because it may be sublicensing from
inbound licensors, the same is true of the ModelGo Attribution
License, which is also sublicensable. So I'm not following why you
think that your situation is, can be, or should be different from
how the Apache license works.<br>
<br>
Pam<br>
<br>
<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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El Dorado Hills, CA 95762</a><br>
<a href="tel:(919)%20800-8033" value="+19198008033" target="_blank">+1 919-800-8033</a><br>
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</div>
<div>On 9/21/2026 3:31 AM, Moming Duan
wrote:<br>
</div>
<blockquote type="cite">
<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">
<div dir="ltr" class="gmail_attr">Pamela Chestek <<a href="mailto:pamela@chesteklegal.com" target="_blank">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">
<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>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" target="_blank">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">
</a><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" target="_blank"> Unit 4316</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">
</a><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" target="_blank"> El Dorado Hills, CA 95762</a><br>
<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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