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

[Richard Fontana]

On Thu, Aug 13, 2026 at 4:02 PM McCoy Smith <mccoy at lexpan.law> wrote:
>
>
> 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.

If I understand correctly, you're suggesting that the second sentence
of that paragraph is possibly not saying what an example of an
imposition of a "further restriction" is under GPLv3. I don't see how
that reading is possible. In any event:

> 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)?

The matter is discussed at some length in the Third Discussion Draft
Rationale (March 2027)
(https://gplv3.fsf.org/gpl3-dd3-rationale.pdf/download). I'll quote
the passage (and apologies for the seemingly off-topic discussion, but
I actually think it is relevant in relation to the issue of historical
precedent for patent assertions leading to termination of copyright as
well as patent licenses):

<begin>
It is generally understood that GPLv2 implies some limits on a
licensee’s power to assert patent claims against the use of
GPL-covered works. There is, however, no general agreement concerning
the nature, scope, and source of those limitations. To the extent that
they are grounded in legal doctrines of patent exhaustion or implied
patent license, such limits necessarily will vary substantially across
jurisdictions. Careful readers of the GPL have suggested that its
explicit prohibition against imposition of further restrictions10 has,
or ought to have, implications for those who assert patents against
other licensees. Draft 2 took some steps to clarify this point in a
manner not specific to patents, by describing the imposition of “a
license fee, royalty, or other charge” for exercising GPL rights as
one example of an impermissible further restriction. In Draft 3 we
have clarified further that the requirement of non-imposition of
further restrictions has specific consequences for litigation accusing
GPL-covered programs of infringement. Section 10 now states that “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 the
contribution of any contributor).” That is to say, a patent holder’s
licensed permissions to use a work under GPLv3 may be terminated under
section 8 if the patent holder files a lawsuit alleging that use of
the work, or of any upstream GPLv3-licensed work on which the work is
based, infringes a patent.

The patent license grant of the first paragraph of section 11 no
longer applies to those who merely distribute works without
modification. (We explain why we made this change in the next
subsection.) Such parties are nonetheless subject to the conditions
stated in section 10. Unlike the patent license, which establishes a
defense for downstream users lasting for as long as they remain in
compliance with the GPL, the commitment not to sue that arises under
section 10 is one that the distributor can end, so long as the
distributor also ceases to distribute. This is because a party who
initiates patent litigation in violation of section 10 risks
termination of its licensed permissions by the copyright holders of
the work.

In Draft 3 the termination provision of section 8 has been revised to
indicate that, if a licensee violates the GPL, a contributor may
terminate any patent licenses that it granted under the first
paragraph of section 11 to that licensee, in addition to any copyright
permissions the contributor granted to the licensee. Therefore, a
contributor may terminate the patent licenses it granted to a
downstream licensee who brings patent infringement litigation in
violation of section 10. The changes we have made to sections 8, 10
and 11, taken as a whole, eliminate the special need for the narrow
patent retaliation provision of section 2, which we have removed in
Draft 3.
<end>

The penultimate sentence there interestingly does not quite say
explicitly that the relevant patent assertion scenario can lead to
termination of copyright as well as patent licenses, but it seems to
me that there's no other way to interpret that paragraph, or indeed
the relevant text of GPLv3.

Richard