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

[Pamela Chestek]

On 8/29/2026 7:34 AM, John Colagioia via License-review wrote:
> As a newcomer, and on the digest-track, for (primarily) the OpenMDW 
> License issue, I apologize if I cover any ground that others have 
> discussed or otherwise transgress.

Hi John,

The full (and lengthy) discussion thus far is here: 
https://lists.opensource.org/pipermail/license-review_lists.opensource.org/2026-August/thread.html 
That might fill in some of the background for you.

>
> In any case, as I read the license (non-lawyer, but capable of reading 
> carefully), I see several fundamental problems with calling OpenMDW an 
> Open Source license.  Most critically?  I don't see any evidence that 
> an AI model can qualify for copyright.  Models consist mainly of 
> tensors describing transformations of vectors, in other words a list 
> of mathematical formulas, expressly forbidden from receiving 
> copyright, at least in the United States.  And they're not made by 
> humans, so wouldn't qualify for copyright protection, even if you 
> could get a "pile of formulas" copyright.  Without a copyright, then 
> what rights does the license even grant?

The OpenMDW licenses are intended for mixed use, for models (including 
architecture and parameters) as well as "all related artifacts" that are 
provided under the license. So there likely will be copyrightable works 
for which the license is used. The license also grants database rights, 
which may apply to models.

Also, the license gives general permission to "deal in the Model 
Materials without restriction." We don't know yet what, if any, legal 
regime might protect models. It may be that trying to bind users to a 
license to an open source a model is easier said than done, but I don't 
think that an enforcement mechanism that may not be premised on 
copyright is a reason to dismiss the license out-of-hand.

>
> A corollary to the lack of human input, models have no reasonable 
> "source code" to open, removing even the possibility of a license 
> offering Freedoms 1 and 3 in any reasonable sense. A developer could 
> plausibly patch a GGUF-ish file, but that seems like a pathological 
> kind of "open."
>
> Ignoring that, the license admits twice that the vendor may not even 
> have the right to distribute the model.  The anti-lawsuit clause (¶5) 
> and the second disclaimer (¶8) both assert in different ways that the 
> vendor refuses to take responsibility for the copyright status of the 
> work itself, passing responsibility downstream.  No significant public 
> license asserts that the vendor has the right to distribute the 
> product, but none raises the question so deliberately.  And this goes 
> back to the initial problem:  If the vendor explicitly refuses to 
> acknowledge that they own the model and have the right to distribute 
> it, then what rights can the license grant?
Paragraph 5 is very typical for open source licenses, except that until 
now it's only been triggered by a patent infringement suit, not a 
copyright lawsuit. The copyright trigger has had a great deal of 
discussion and dissension. We've also discussed Paragraph 8 and whether 
it imposes a duty on the licensee or is just advisory. If it's just 
advisory, then it's no different in legal effect than the standard 
representation that the software is being provided "as-is."
>
> Slight tangent:  17 USC §506(c) says that "any person who, with 
> fraudulent intent, places on any article a notice of copyright or 
> words of the same purport that such person knows to be false...shall 
> be fined not more than $2,500."  I don't think that anybody wants to 
> defraud anybody with the license, but the implied claim of ownership 
> of the model in offering the license while also asserting the right to 
> not own it feels like it sets up every vendor for exactly that lawsuit.
This is an overreach, that's a criminal section of the statute and, as 
your quote includes, requires fraudulent intent. Merely putting a 
copyright notice on a model, particularly where its legal status is 
unclear, isn't going to be fraudulent.
>
> Those two paragraphs also not-coincidentally serve to discriminate 
> against users.  ¶5 says that the vendor revokes the license if the 
> user participates in a lawsuit against the vendor.  ¶8 says that the 
> user can't use the model for illegal purposes.  The latter seems 
> especially odd, since a license that did try to grant permission for 
> illegal actions would be invalidated.
As mentioned, paragraph 5 premised on a patent infringement lawsuit is 
common in open source licenses. If paragraph 8 is just advisory, I would 
view it charitably as trying to provide information about a type of work 
with new kinds of legal risks that people may not be aware of.
>
> And even if we consider the anti-lawsuit thing legitimately "open" 
> after decades to the contrary, it seems far too broad without a strict 
> definition of "participate."  Witnesses, jurors, and the entire 
> defense participate in lawsuits, but could all have their work 
> impacted if their employer requires use of an LLM released under the 
> OpenMDW's terms and involved in their case.  "They don't mean that," 
> sure, but not providing bright-line definitions means that the vendor 
> has oversight over who uses the product, in other words NOT a public 
> license.

That's an interesting point, it is not the language typically used:

OpenMDW-1.1 - "If you file, maintain, or voluntarily participate in a 
lawsuit ..."

Apache 2.0 - "If You institute patent litigation against any entity ..."

Eclipse 2.0 - "If Recipient institutes patent litigation against any 
entity ..."

Mozilla 2.0 - "If You initiate litigation against any entity ..."

GPL v3 - "you may not initiate litigation ..."


>
> Overall, I don't see how Open MDW works as an open source license.  
> The model probably doesn't qualify for a copyright. If it does, then 
> the license suggests that the vendor probably doesn't own it, opening 
> the vendor up to fraud accusations.  If it qualifies for copyright and 
> the vendor can justifiably claim to own it, then it has no source 
> material to sensibly make it "open source."  Likewise, if it excludes 
> people from taking advantage of the license for any reason, then it 
> can't sensibly call itself "open source."  Or rather, if it fits the 
> criteria as an open source license, then I can't think of a single 
> public license that would fail to meet those criteria.

Pam


Pamela S. Chestek
Chestek Legal
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