Are implicit dual-licensing agreements inherently anti-open?

[David Barrett]

It seems to me the OVPL combines elements of BSD, GPL, and MPL -- all of 
which are open.  Thus I see strong precedent to argue that the OVPL 
itself is also open.

Specifically, the BSD license, as Stephane mentioned, allows Microsoft 
to "take" code into a closed, proprietary branch and not contribute 
anything back.  I think we can all agree that the BSD license meets the 
"open source" criteria, so this seems to be solid evidence that an open 
license *can* allow code to move into closed branches.  In the case of 
BSD, anyone has that right.

The GPL, which I think we can also agree is "open", is at the opposite 
end of the spectrum.  It explicitly disallows anyone to take code a 
closed branch -- initial developer or otherwise.

The OVPL license, however, sits somewhere in between.  It is like the 
GPL in that contributors cannot take code into a closed branch.  But 
it's like the BSD in that the initial developer can.

So the question is: is that still open?  Well, if the BSD is open, and 
if the GPL is open, I see little reason why the OVPL shouldn't also be 
open, because it's just combining behavior between the two.

The only reason I can see is that the OVPL distinguishes bewteen 
contributors and the initial developer, whereas neither BSD nor GPL 
does.  So in a sense, it's discriminatory.  However, there's precedent 
for this in the MPL, as it makes a special effort to define "initial 
developer" in 1.6 (what precisely it does with that distinction is the 
subject of debate, but there is no debating that the distinction is in 
fact made).

So it seems to me the OVPL is taking the code-closing options of BSD, 
the copyleft of the GPL, and the initial-developer distinction of the 
MPL, and rolling it into one.  All of the pieces from which the OVPL is 
composed are open, and thus to my view, this seems strong evidence that 
the OVPL itself is also open.

Where is this analysis off?

-david