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

[Richard Fontana]

On Fri, Aug 28, 2026 at 9:12 PM Josh Berkus <josh at berkus.org> wrote:
>
> Before LLMs and the Anthropic suit, a copyright antisuit provision would
> not have been controversial.  If someone had added a clause identical to
> this to a license submitted 10 years ago, this forum would probably have
> approved it without much argument as a simple extension of the patent
> grant antisuit provision.

It may ultimately not matter much, but I don't think so (speaking
particularly as someone who was on the OSI board 10 years ago, and
participating in license-review). This is actually part of what
concerns me.

I feel that if a license with an identical clause was submitted 10
years ago, maybe even much more recently than 10 years ago, this forum
would have identified it immediately as raising a novel policy issue
and would have identified some of the problems that have been raised
here. I suspect, given the atmosphere 10 years ago, such a license
would *not* have been approved -- this was during the period when
people (generally, investors in so-called "open source companies")
were complaining that the OSI wasn't approving enough novel licenses.
Indeed I am *certain* that if such a license were submitted by some
unknown individual or institution, or even a known sophisticated
license drafter, it would have had a hostile reception.

I'd also note again that the history of patent-assertion-triggered
termination in post-1998 open source licenses was not characterized by
unbridled or uncritical enthusiasm. There was a legacy of skepticism
and suspicion around the general category of provision that had not
been forgotten by ~2016. That's just about the time that Facebook
started using a bespoke BSD-derived license with a patent termination
provision that seemed to unwittingly revive the overreaching
approaches to patent termination in certain earlier licenses, for
which it was widely criticized, including by some who were associated
with the OSI. I realize that if you ignore the copyright issue, the
termination clause in OpenMDW-1.1 *looks* like the kind of patent
termination provisions that had come to be seen as boringly benign.
But I think everyone would have been on their guard about any sort of
novel litigation-triggered termination provision, particularly one
where the novelty was the extension to copyright.

Richard