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

Fri Aug 14 17:39:54 UTC 2026

"The license does not silence or penalize them"

The license does penalize them though. If a large enough company uses this license on their model and their model becomes ubiquitous (which is what the industry wants), then effectively no one can enforce their own copyright without giving up access to the thing they need to do their job.

The reason patent retaliation works in a FOSS license is that most people don't own a patent. With copyright, everyone owns their copyright from the moment they create something. Given that a model HAS to include a great deal of copyright-protected work, this license is effectively just an amnesty for, depending on how courts rule, large scale copyright infringement by model creators. I'm no fan of copyright but this is the world we live in.

We have open source licenses for models already, they're the same list as the licenses for software. Just use those and please stop trying to pretend like this is a brand new frontier.

Eric Schultz
Digital Autonomy and Open Source activist
they/them
https://wwahammy.com

On Friday, August 14th, 2026 at 12:11 PM, Michael Dolan <mdolan at linuxfoundation.org> wrote:

> I welcome the feedback. I am not aware of any other AI model-focused license having been submitted previously, and I apologize if we are pushing boundaries that OSI or this committee is not prepared to cover. I had heard rumors there was interest within OSI in seeing the OpenMDW license submitted, which is part of why we brought OpenMDW here rather than treating it as outside scope. If OSI is the wrong forum, I will take that as a fair response.
>
> I'll try to address the questions and responses so far in one consolidated response. Richard, I don't see the message from Luis you referred to in your last email. I'm not sure if that is a mailing list delay or if that email wasn't sent to the full list.
>
> The feedback seems to focus on the termination provision. I'll repaste the OpenMDW-1.1 [5] termination provision here so everyone can easily take another look at it:
>
>> 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.
>
> Richard, the termination copyright trigger you focused on was a deliberate change, and I flagged it as the sole substantive change from 1.0 for exactly this reason. I’m including some context and responses to the specific concerns below. I will also try to answer Pam's history question, since the two are related. I do not know the entire history of all licensing termination provisions, though I’m familiar with a few… I’ve covered what I do know of here.
>
> 1. It helps to separate the termination trigger from the scope of what is terminated.
>
> On the remedy side, terminating copyright grants is not new for OSI-approved licenses. A few examples:
>
> - MPL 1.1 [1], Section 8.2(a): a patent infringement claim against a Participant terminates, on 60 days notice and subject to a cure mechanism, that Participant's grants under Sections 2.1 and 2.2. Each of those sections includes the copyright grants (subsection (a)) alongside the patent grants (subsection (b)).
>
> - CDDL 1.0 [2], Section 6.2: a patent claim alleging the Participant Software infringes terminates all rights granted under Sections 2.1 and 2.2, not only from the Participant but from the Initial Developer and all Contributors.
>
> - OSL 3.0 [3] and AFL 3.0 [4], Section 10: the entire license terminates upon commencing a patent action against the Licensor or any licensee alleging the Original Work infringes. The OSL’s Section 10 is below:
>
> 10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, against Licensor or any licensee alleging that the Original Work infringes a patent. This termination provision shall not apply for an action alleging patent infringement by combinations of the Original Work with other software or hardware.
>
> So full termination of all grants, copyright included, has a history of precedent within OSI. I suspect what is unique in OpenMDW-1.1 [5] is copyright as a trigger for termination, and I will address that in point 3. below.
>
> On Pam's question about the history: my understanding is that the retrenchment ran along two dimensions. The first was the scope of the trigger. The IBM-PL [6] and CPL [7] provisions reached patent claims unrelated to the licensed software (as did Facebook’s later, highly controversial, and never-OSI-approved BSD+Patents [8] grant). I suspect that is may be the source of the criticism Richard was also referring to. I would agree the trend seems to have shown later licenses narrowed the trigger to claims that the covered work itself infringes - which is what the OpenMDW does.
>
> The second dimension was on the remedy, with Apache-2.0 [9] in 2004 limiting termination to the patent grants alone. But that narrowing was never universally uniform. CDDL, with full termination of all grants from all contributors, was approved in January 2005, weeks after Apache-2.0. MPL 2.0 [10] in 2012 – and the CDDL retained termination of all Section 2.1 grants upon a patent claim, including the copyright grant in Section 2.1(a). And OSL 3.0 remains approved with whole-license termination.
>
> The consistent point seems to be the trigger: termination should be limited to claims about the licensed work itself. The OpenMDW-1.1 is likewise scoped to trigger on claims against the Model Materials, or in other words, the covered work.
>
> 2. OpenMDW-1.1’s termination trigger is based on the licensed Model Materials (not outputs).
>
> Three key points about the OpenMDW’s limits:
>
> - The trigger reaches only lawsuits asserting that the Model Materials infringe. Claims about anything other than the licensed materials do not trigger it. This is the same formula other approved licenses align on.
>
> - There is an express exception for suits brought in response to a suit first brought against the licensee. The provision can only be used defensively, not offensively. Termination is reachable only by a licensee who initiates, unprovoked, a claim that the very materials they are using are unlawful.
>
> - The consequence is limited to the claimant's own license. The provision does not bar the claim, impose a penalty, or affect any claimant who is not exercising rights under the license. A plaintiff who is not using the Model Materials is untouched by it.
>
> I would also note that terminating upon suits against persons other than the licensor has direct precedent at least in OSL 3.0 (there may be others). I included OSL 3.0’s Section 10 above, which terminates upon a patent action “against Licensor or any licensee…” Note also that OSL 3.0’s provision terminates even upon cross-claims and counterclaims. OpenMDW-1.1, with its express exception for suits brought in defensive response, is narrower on that axis than an already-approved license.
>
> 3. Copyright is in the trigger to maintain symmetry
>
> The function of defensive termination has always been focused on symmetry: a licensee should not simultaneously exercise the benefits of a license while asserting in court that the licensed materials are unlawful. In 2004, for software, the realistic form of that assertion was a patent claim, so Apache-2.0 and others focused on and directly addressed patents.
>
> Model publishers are facing a very different economic equation than circa 1990-2005 software developers. Models are built from large bodies of existing works, and that is where the model publisher’s legal exposure arises. For those model publishers, the realistic assertion they face is that the licensed materials themselves infringe, and that infringement claim likely runs under copyright, not patent law. A patent-only provision in this context would replicate Apache-2.0's form while abandoning its function - there would not be symmetry. And that was the clear feedback received after OpenMDW-1.0's release.
>
> To be clear, the OpenMDW-1.1 license does not take any position on whether or not there may be a legitimate copyright claim against a model. The hypothetical fact patterns will belong to the parties training and publishing models. Anyone with a claim against the Model Materials can bring that claim, including a licensee, and all remedies, damages, and injunctive relief included, are unimpaired. The only consequence is that a licensee who also contends the Model Materials are unlawful/infringing cannot continue relying on a license to those same materials while pressing that contention offensively. Termination puts the parties back to the position they would be in absent the license - which brings this back to a symmetrical position.
>
> 4. The training data hypothetical everyone’s likely thinking about.
>
> Generative models are tools used by users to create. With enough effort and precise, meticulous prompting, a user could hypothetically manipulate a model to recreate what appears to be a derivative of a copyrighted work. Even if the outputs appear infringing, that does not necessarily mean the Model Materials were themselves infringing. Without any AI, anyone could use Gimp today to recreate a derivative of a copyrighted work - that doesn’t imply Gimp is itself infringing a work. For the same reason, I think this discussion needs to separate discussion of the Model Materials from the outputs.
>
> A claim that a particular output infringes, without an assertion that the Model Materials themselves infringe, does not trigger the provision. The trigger requires a lawsuit asserting that the Model Materials infringe. Model Materials are defined as:
>
> "Model Materials" means the materials provided to you under this agreement, consisting of: (1) one or more machine learning models (including architecture and parameters); and (2) all related artifacts (including associated data, documentation and software) that are provided to you hereunder.
>
> The termination provision’s phrase "directly or indirectly" parallels Apache-2.0's “direct or contributory patent infringement” and addresses theories of infringement by the Materials. It does not sweep in claims about other works or outputs. Some open weight model licenses currently in use in the industry (e.g. notably the Llama Community Licenses) extend their termination triggers to claims about outputs. OpenMDW-1.1 defensive termination does not apply to claims alleging copyright infringement of the outputs - it does apply to claims about the Model Materials.
>
> Where a plaintiff’s theory is that the Model Materials (e.g. the weights) themselves are infringing, the provision applies. That plaintiff is asserting that the licensed materials cannot lawfully be reproduced or distributed. The license does not silence or penalize them. It says they cannot at the same time keep exercising a license to reproduce and distribute those same materials. That is the same symmetry rationale the OSI accepted for patent retaliation, and I don’t see why it should be limited to just patent retaliation.
>
> 5. The practical reality.
>
> The reality is that we’ve seen a marked increase in bespoke model licenses designed to cover the gaps identified in my submission. The NVIDIA Open Model License [11] terminates on copyright or patent litigation alleging the model infringes and was the inspiration behind the change in OpenMDW-1.1. The current Nemotron license [12] extends its trigger to claims that outputs infringe. The Llama family [13] (while admittedly not OSI-approved) terminates on IP claims broadly (patent and copyright, claims and counterclaims, outputs and weights), plus acceptable use restrictions. These are terms important to model builders and publishers. The trend has been that the valuable models people want to use are often not under a license that would meet OSI’s standards.
>
> OpenMDW was drafted to provide model builders and publishers with a standardized license free of those restrictions: no use restrictions, no output restrictions, and notice-only conditions. The copyright dimension of the defensive termination provision is part of what makes a fully permissive release viable in the current assertion environment.
>
> 6. Richard's OSD 9 question.
>
> Treating the choice of a single license for a package of components released together as an OSD 9 problem seems challenging to me. I do not think OSD 9 is relevant here, honestly. OSD 9 prohibits a license from restricting other software distributed with the licensed software. Specifically, it says:
>
> The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open source software.
>
> A simple example would be a license insisting that other programs on the same medium be open source. The Model Materials are not other software distributed along with the licensed work. They are the licensed work – they’re packaged and built to work together. The premise that a single license covering a bundle of components violated OSD 9 would implicate most software package releases I can think of. Every software distribution is a bundle of conceptually separate components under one license: code, documentation, build tooling, test data. The OSD has never required per-component granularity in the grant or the remedy.
>
> OpenMDW-1.1 places no condition on anything distributed alongside the Model Materials. A licensee may ship them with proprietary code, copyleft code, or anything else, and OpenMDW does not touch that software. That is the interest OSD 9 protects. If I recall correctly, the SSPL [14] concern ran the other way: SSPLv1 reached the service provider's own separate programs that were never provided under the license. OpenMDW's termination reaches only what the licensor itself provided under the agreement. IMO, the AGPL license family is far closer to an OSD 9 issue than OpenMDW-1.1.
>
> The symmetry rationale above also holds at the level of the Model Materials release: a licensee suing over one component while continuing to exploit the rest would enable both attacking and exercising the same grant.
>
> Regarding separateness: a model release functions as a unit. The weights are not usable without the architecture, configuration, and tokenizer, and the documentation describes that specific release. Many apps bundle presentation code, backend logic code, SQLite for data, and security libraries into a release. You can swap SQLite with a pre-populated SQLite full of numbers, and you have nearly the same package.
>
> Thanks,
>
> Mike
>
> References:
>
> [1] MPL 1.1: https://www.mozilla.org/en-US/MPL/1.1/
>
> [2] CDDL 1.0: https://spdx.org/licenses/CDDL-1.0.html
>
> [3] OSL 3.0: https://spdx.org/licenses/OSL-3.0.html
>
> [4] AFL 3.0: https://spdx.org/licenses/AFL-3.0.html
>
> [5] OpenMDW-1.1: https://openmdw.ai/license/1-1/
>
> [6] IBM Public License 1.0: https://spdx.org/licenses/IPL-1.0.html
>
> [7] Common Public License 1.0: https://spdx.org/licenses/CPL-1.0.html
>
> [8] Facebook BSD+Patents (commonly referred to as the React PATENTS file): https://github.com/facebook/react/blob/v0.12.0/PATENTS
>
> [9] Apache-2.0: https://www.apache.org/licenses/LICENSE-2.0
>
> [10] MPL-2.0: https://www.mozilla.org/en-US/MPL/2.0/
>
> [11] NVIDIA Open Model License: https://www.nvidia.com/en-us/agreements/enterprise-software/nvidia-open-model-license/
>
> [12] NVIDIA Nemotron Open Model License: https://www.nvidia.com/en-us/agreements/enterprise-software/nvidia-nemotron-open-model-license
>
> [13] Llama 4 Community License: https://www.llama.com/llama4/license/
>
> [14] SSPL v1: https://www.mongodb.com/legal/licensing/server-side-public-license
>
> [15] GPLv2: https://www.gnu.org/licenses/old-licenses/gpl-2.0.html
>
> ---
> Mike Dolan
> The Linux Foundation
> Cell: +1.440.552.5322
> mdolan at linuxfoundation.org
>
> For help scheduling a meeting, please contact Jackline Mbithi <jmbithi at linuxfoundation.org>.
>
> ---
>
> On Fri, Aug 14, 2026 at 11:26 AM Richard Fontana via License-review <license-review at lists.opensource.org> wrote:
>
>> On Thu, Aug 13, 2026 at 1:58 PM Richard Fontana <rfontana at redhat.com> wrote:
>>
>>> 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.
>>
>> As Luis's message shows, I was reading MPL-2.0 incorrectly. Defensive
>> termination is triggered by patent assertions but terminates copyright
>> as well as patent license grants. (That would seem to be true of GPLv3
>> as well, unless copyright claims are implicitly also a "further
>> restriction".) I think my reading of EPL-2.0 was correct.
>>
>> Richard
>>
>> _______________________________________________
>> The opinions expressed in this email are those of the sender and not necessarily those of the Open Source Initiative. Communication from the Open Source Initiative will be sent from an opensource.org email address.
>>
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