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

[Pamela Chestek]

But one that is triggered by a copyright assertion is.

Pam

Pamela S. Chestek
Chestek Legal
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pamela at chesteklegal.com
www.chesteklegal.com

On Wed, Aug 19, 2026, 9:41 AM McCoy Smith <mccoy at lexpan.law> wrote:

>
> On 8/15/2026 6:01 PM, Richard Fontana via License-review wrote:
> > 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>
> > <snip>
> > 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.
>
> I think maybe you mean the third-to-last quoted sentence, but yes this
> seems to make clear that the GPLv3 author can terminate patent *&*
> copyright rights upon a patent assertion. That had been my recollection
> from the drafting days, but I sort of feel like the text describing that
> right wound up being sub-optimal (IMHO) in expressing that right. Thanks
> for digging into the history!
>
> So at least MPLv2 & GPLv3 (and maybe GPLv2?) give a (C) termination
> right upon patent assertions. CDDLv1.1 does as well (see Sec 6.2). So,
> at a minimum, I think we can conclude that a patent defensive
> termination clause that allows for termination of copyright rights isn't
> anomalous.
>
> McCoy
>
>
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