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

[Pamela Chestek]

There seem to be two remaining points of contention (correct me if I 
missed any others):

1. Whether a copyright trigger for termination is appropriate for an 
OSI-approved open source license; and

2. What Model Materials are included in the termination provision.

Given the amount of controversy over the copyright trigger, I suggest, 
as Mike offered, that we instead consider the OpenMDW-1.0 license for 
approval and defer question (1) to a later time when the lawfulness of 
using copyrighted works for training is more settled.

That leaves only question (2). Richard commented:

> Maybe that doesn't matter for OpenMDW-1.0, because of an uncodified
> "software patents are such bad things that we can go really far in
> disincentivizing patent assertions" principle, but OpenMDW-1.1 has to
> be analyzed differently because it reaches licensee copyright claims.
Does considering only OpenMDW-1.0 reduce the concerns about the license 
enough that it could be approved?

Pam

Pamela S. Chestek
Chestek Legal
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On 8/29/2026 5:00 AM, Richard Fontana via License-review wrote:
> 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
>
>
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