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

[Pamela Chestek]

On 8/30/2026 5:02 PM, McCoy Smith wrote:
>
> 2. Specifically, the primary objection to OpenMDW-1.1 seems at this 
> point to be that it allows termination of the license upon assertion 
> of a copyright infringement claim against the licensed work. We 
> already know, I think at this point, that terminating the patent 
> license part of a license is an appropriate termination event upon a 
> patent assertion (lots of OSI-approved licenses, including popular 
> ones, do this), and in at least two examples (GPLv3 & MPLv2), 
> terminating the copyright license part of the license is an 
> appropriate termination event upon a patent assertion. Why isn't *any* 
> litigation against something licensed open source (except, I suppose, 
> litigation to ensure compliance with the license itself) something 
> that impinges upon "the ability to do anything you want with the 
> software"? Getting sued (or even the threat of being sued) is an 
> impediment to doing what you want with a licensed work. Whether it be 
> for patent infringement, for personal injury, for breach of warranty, 
> or even copyright infringement. In fact, many open source licenses 
> disclaim warranties of non-infringement. Meaning, you can't sue the 
> licensor for a work that you received under an open source license 
> that results in a third party asserting an IP claim against the work. 
> Why isn't that warranty disclaimer equally problematic?
>
I asked that question early on and Mike's answer was:

> /The trigger tracks the realistic assertion risks for publicly 
> released model materials, not exact alignment with the grant. 
> Apache-2.0 grants both copyright and patent licenses but terminates on 
> patent claims only, so a trigger narrower than the grant is common. 
> The omitted IP regimes also fit poorly. Trade secrets are 
> misappropriated rather than infringed, and a trade secret claim about 
> openly published materials is close to a contradiction, since 
> publication destroys secrecy. Sui generis database rights exist in 
> only some jurisdictions. The drafting initially started with 
> OpenMDW-1.0 using a patent trigger but was expanded in OpenMDW-1.1 to 
> include copyright, where infringement suits about model materials 
> realistically arise, without going as far as terminating for any 
> “intellectual property infringement” claims as OCLC-2.0 does. /
>
I confess I don't really follow this answer. I also don't understand why 
termination isn't triggered by any lawsuit, IP-based or not, if the goal 
is "hey, it's a fair exchange that you don't get to use my product if 
you're going to sue me." Which leads me to then consider other reasons 
why copyright is getting special treatment. Several people have given 
different reasons why they think patent is OK but copyright shouldn't be 
treated the same.

> To my mind, the carve out that is being argued here -- it is only 
> copyright claims against the licensor by the licensee that it is 
> impermissible to have the license try to prevent -- seems solely 
> driven by the perception that: a) AI models are rife with copyright 
> infringement; b) copyright infringement claims against those models 
> are inherently meritorious, or at least, ought not be impeded; c) the 
> calculus that many, many open source licenses make re patents -- you 
> can sue, or you can continue to use the license, but not both -- 
> shouldn't equally apply to copyrights; d) AI model creators are trying 
> to "game the system" in a way that is somehow more of a risk than the 
> "system gamers" of the past (for example, the antagonist model you 
> describe above)
>
I would quibble with that, and perceive your points as premised on the 
assumption that there aren't valid copyright claims. But I do not think 
that issue is well-enough settled to review a license with that 
assumption. There is one lawsuit in Germany that held the training was a 
copyright infringement, one lawsuit in the UK that didn't reach the 
issue because the training was not done in the UK, one lawsuit in the US 
that held it was a fair use, and another US case that held begrudgingly 
it was a fair use only because the plaintiff didn't have evidence of 
market harm (I guarantee later plaintiffs will have the evidence). These 
are all first instance court decisions, so each one individually doesn't 
have much weight. There is a pending U.S. appeal, decision any day now, 
about whether training violates open source licenses under a theory of 
removal of content management information (not copyright infringement). 
So what bothers me, and I read also in Richard's comments, is that you 
are forcing a legal outcome, implicitly saying that developers don't 
have a claim so their opposition is unreasonable, when many, many 
strongly disagree with that position.

Fast forward to a time where training is not a fair use and use of 
copyrighted works for training requires lawful access and license 
compliance (which I don't think is all that remote a possibility). Does 
the copyright trigger still sound reasonable?

Pam

Pamela S. Chestek
Chestek Legal
4641 Post St.
Unit 4316
El Dorado Hills, CA 95762
+1 919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
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