[License-review] For Approval: OpenMDW License Agreement, versions 1.1 (OpenMDW-1.1)

[McCoy Smith]

On 8/13/2026 10:58 AM, Richard Fontana via License-review wrote:
>> 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.
> This seems to potentially go further than the more familiar kinds of
> defensive termination provisions we see in modern open source
> licenses. First, it applies to copyright as well as patent assertions.
> Apache-2.0, MPL-2.0, and EPL-2.0 have defensive termination provisions
> limited to patent assertions and only terminating patent licenses, if
> I'm reading them correctly. The latter two's predecessors also I
> believe only had patent-litigation-triggered defensive termination.
> The sole "modern" (or maybe any?) open source license I can think of
> that might have defensive termination extend to copyright litigation
> is GPLv3, but this is not explicit in the license text and I'm
> honestly not sure it should be considered a correct reading (I really
> haven't thought about it, at least recently). GPLv3 explicitly says
> that certain patent litigation claims are examples of "further
> restrictions"; it says nothing about copyright in this regard.

Does it though?

Here's the passage in GPLv3 in question:

"You may not impose any further restrictions on the exercise of the 
rights granted or affirmed under this License. For example, you may not 
impose a license fee, royalty, or other charge for exercise of rights 
granted under this License, and you may not initiate litigation 
(including a cross-claim or counterclaim in a lawsuit) alleging that any 
patent claim is infringed by making, using, selling, offering for sale, 
or importing the Program or any portion of it."

Does "further restrictions" modify the subpassage after ", and" or are 
those separate passages? I think there's an argument (and this might get 
somewhat into the Oxford comma debate?) that those are two separate 
statements about actions a licensee may not take (if the other 
construction were intended, wouldn't it be just "or initiate..."? If I'm 
correct, than filing a patent claim I think terminates the license.

TBH I don't remember a lot of the discussion on this point (if any) 
during GPLv3 drafting; did anyone subsequently analyze it (or do the 
contemporaneous notes discuss it)?


>
> As a side note, but maybe relevant, some legacy (post-1998)
> "corporate" open source licenses with patent-litigation-triggered
> defensive termination provision were controversial and widely
> criticized at the time they were proposed because they sometimes
> extended to patent claims unrelated to the software being licensed.
> While the licenses I'm thinking of (e.g. IBM-PL, CPL) were
> OSI-approved, and reflected the zeal within the open source community
> 25-30 years ago over the software patent problem, policy criticisms
> were influential and later open source licenses tended to have the
> more limited approach to patent license termination seen in the
> licenses I mentioned above.
>
> in OpenMDW-1.1, we seem to see a departure from the general spirit of
> more restrained approaches to defensive termination, in a novel (for
> potential OSI-approved licenses) context that I'm concerned may be
> problematic. Not only does the license extend termination to copyright
> litigation, it also broadens the scope of termination by covering
> seemingly unrelated materials. For example, suppose I believe that an
> OpenMDW-1.1-licensed model infringes my copyrights. I sue the model
> licensor, but now my copyright and patent rights to some Python code
> distributed (in some sense) along with the model are terminated.
>
> This issue seems more acute given the current atmosphere in the open
> source community around the use of open source software in training
> models. Many members of the open source community, rightly or wrongly,
> seem to feel strongly that their work is being misappropriated in the
> model training process and that the output of generative AI models
> potentially infringes their copyrights (which is of course possible in
> principle). Suppose an open source developer determines that an
> OpenMDW-1.1 model generates some software output, say, that they
> believe infringes their copyrighted work which, by hypothesis, was
> used in training the model. Should they have their licenses to not
> only the model but also any related code be terminated because they
> decide to pursue an infringement claim against a provider or
> distributor of the model materials? I don't know, but I do know that
> this is unlike any OSI-approved license I can think of, so I think the
> OSI will need to specifically deliberate over this issue.
>
> Richard
>
>
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