Are implicit dual-licensing agreements inherently anti-open?

[Wilson, Andrew]

Alex Bligh wrote:

> I fully admit to twisting the words of the MPL to allow it to do
> something which was probably not the authors' intent. 

Indeed.

> However, I don't
> see what is wrong with my interpretation. Why can the ID not do
> precisely what I say, and achieve (in effect) a license-back - or
> even a retrospectively introduced license-back?

Because MPL Sec. 13 does not create a license back to ID.  Sec. 13
clarifies that if the ID elects dual licensing (or now triple licensing
for Mozilla), that dual or triple licensing also applies to Contributor
modifications.  Nothing in Sec. 13 creates an additional license back
to the ID beyond said license(s).  Mitchell???

> For completeness, one might suggest that the license-back is "an
> assignment in disguise" (and thus not enforceable in jurisdictions
> requiring such assignments to be made in writing). This is pretty
> easily rebutted. 

Really? OVPL mandates that a consideration of value (license rights
to modifications) be exchanged between contributors and the ID.
In addition to sounding like an assignment in disguise, this sounds
very much like a contract (as opposed to a license) in disguise.
One might then well ask, are Joe and Jane Engineer, employees of
a typical large corporation who have downloaded some OVPL code, 
authorized to enter into a contract on behalf of their employer?  
Of course, the answer is usually no.

Post-SCO/IBM, any corporation that is paying attention is going to
be extra-careful about the provenance of any code they incorporate
into a SW product.  Relying on the imputed contract in OVPL strikes
me as quite risky behavior for an ID.

What does the question of contractual validity have to do with 
the open source principles per se? Probably not much.  However, since the 
novelty of OVPL vis-à-vis CDDL lies in the license back to 
the ID, it is still germane to the question of whether OVPL should be
approved.  If OVPL == CDDL + an additional license back which is
not enforceable, then I do not see a case for approval.

Andy Wilson
Intel Open Source Technology Center