Are implicit dual-licensing agreements inherently anti-open?

[Alex Bligh]

--On 20 July 2005 08:25 -0700 "Wilson, Andrew" <andrew.wilson at intel.com> 
wrote:

> By "right of first refusal," in this case I mean the ID has two special
> rights.  First is that the ID has the right to see *all* modifications to
> covered code.  If modifications have not been posted to a public place,
> the ID can send a letter to users of OVPL code demanding to see any of
> their modifications to covered code.  Ordinary users of OVPL code do not
> have this right.  Other reciprocal licenses, e.g. GPL and MPL, do not
> give the ID this right.
>
> Second is that if ID elects to incorporate a contributor modification
> into the mainline public version of covered code, the ID then also gets
> special rights to relicense that modification and incorporate it into
> proprietary code.  Other users do not have this right and may use
> modifications solely under OVPL.

OK, this is what we (OVPL people) are calling the "Additional grant".
I don't think characterizing it as a "right of first refusal" is useful,
because the ID cannot refuse anything, i.e. the ID cannot prevent the
contributor from distributing the modifications in an open-source manner.
If that was the case, that would clearly not accord with either the
spirit or the letter of the OSD as it would in effect prevent any forking.

But I still don't understand what I'm considering an "Additional Grant"
(and you are calling "Right of First Refusal") brings in contract law
considerations making this an assignment in law made otherwise than in
writing (which was your original point on enforceability) because
a) It's not an assignment
b) It's not in contract

Alex