Are implicit dual-licensing agreements inherently anti-open?

[Wilson, Andrew]

Alex Bligh wrote:


>> 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.
>
> Powers of agency and ostensible authority are no doubt interesting
> areas of law. However, I fail to see why the question is different
> here from (say) under the CDDL where a contributor makes a license
> to the code they contribute available to others ("You") under section
2.
> What if Joe and Jane, as engineers, do not have authority to do that?
> Same under (say) GPL.

Joe and Jane do not need contractual authority to use executables
based on GPL'd code, because GPL explicitly disavows being a contract 
("You are not required to accept this License, since you have not signed
it.")

Now look at Joe and Jane attempting to use executables based
on OVPL'd code.  As I read
OVPL, use of such executables requires agreeing to sec. 3 of the
license.  Section 3,
among other things, purports to create a bi-lateral business
relationship 
between Joe and Jane (or is it their employer?) and the ID, in which the
ID
is granted what is effectively right of first refusal to any
modifications.
This bi-lateral business relationship looks suspiciously like a
contract, yet Joe and Jane (or their employer?) haven't signed anything
here, either.

And no, other reciprocal licenses, e.g. GPL and MPL, do not have this
problem, because they are offers to license to the world at large on
fixed
terms, not a contract between a contributor and
the ID disguised as a license.

Andy Wilson
Intel Open Source Technology Center