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

[Richard Fontana]

On Sat, Aug 29, 2026 at 2:58 PM Pamela Chestek <pamela at chesteklegal.com> wrote:
>
> 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.

Not sure if anyone else sees the problem I'm seeing but I think the
"Model Materials" issue is more complex than that of mere uncertainty
over what is actually included in "Model Materials". Even if you had
certainty over the contents of Model Materials, but certainly if you
don't, there is an issue that affects both OpenMDW-1.0 (though I
didn't see it before) as well as OpenMDW-1.1 (ignoring the copyright
trigger), which I'd state as follows:

*For a license containing a patent-assertion-triggered termination to
be approved by OSI as "open source", where assertion of a patent
against thing A gives rise to termination of licenses covering thing
B, are there any limits to how *unrelated* A and B can be?

I know that historical precedent may suggest the answer is "no", but
the most recent well known license to apparently raise this sort of
issue, some 9 years ago, was the controversial Facebook React license,
which I referred to in my response to Josh, never actually submitted
to the OSI (though I remember that Facebook came close to doing so).
For convenience, here was its termination provision:

"The license granted hereunder will terminate, automatically and without notice,
for anyone that makes any claim (including by filing any lawsuit, assertion or
other action) alleging (a) direct, indirect, or contributory infringement or
inducement to infringe any patent: (i) by Facebook or any of its subsidiaries or
affiliates, *whether or not such claim is related to the Software*, (ii) by any
party if such claim arises in whole or in part from *any software, product or
service of Facebook or any of its subsidiaries or affiliates, whether or not
such claim is related to the Software*, or (iii) by any party relating to the
Software; or (b) that any right in any patent claim of Facebook is invalid or
unenforceable. [emphasis added]

As far as I recall, the OSI never took an official position on this
license (for the record, inside Red Hat I insisted it should be
considered open source and I remember finding the three-minute-hate
being applied to Facebook over the license quite appalling), but
plenty of people claimed to see some problem with it that was so
severe that it shouldn't be regarded as open source.

I'm not suggesting that OpenMDW-1.x raises exactly the same issue, but
I contend that the nature of the "Model Materials" concept, which
collects different types of materials that conventionally tend to be
subjected to different kinds of licenses -- remember that this is the
whole point of OpenMDW -- and which might *not* even be distributed
together (as I have explained), raises a similar sort of issue.

To address this issue, I think it might be helpful to look at some
actual cases of "Model Materials" that have been licensed under
OpenMDW-1.x. I'll try to do that when I have a chance.

> 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.

I agree that this would be a good idea, but in part because the second
problem as I tried to formulate it above is possibly already
complicated enough.

>
> 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?

It's clearly a less difficult problem, but I don't think it should be
seen as a sort of slam-dunk case for approval. An obvious case for
approval would be a version of OpenMDW without any defensive
termination provision, or, perhaps, with patent-triggered defensive
termination that is decoupled somehow from the concept of Model
Materials. Without the defensive termination, the nature of Model
Materials doesn't really matter.

What I would not want to see is OSI approving OpenMDW-1.*0* (let alone
OpenMDW-1.1) without explicitly addressing the problem I described
above. I again suggest that the concern might be grounded in OSD 9
("The license must not place restrictions on other software that is
distributed along with the licensed software.").

 Richard