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

[Richard Fontana]

I meant to add, though, that what GPLv3 section 10 doesn't tell us is
whether a *copyright* assertion can be a "further restriction", except
to the extent it can be characterized as "impos[ition of] a license
fee, royalty, or other charge for exercise of rights granted under
this License".

On Sat, Aug 15, 2026 at 9:01 PM Richard Fontana <rfontana at redhat.com> wrote:
>
> 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