Are implicit dual-licensing agreements inherently anti-open?

[Wilson, Andrew]

Alex Bligh wrote:

>1. Under 13, the Initial Developer (but not a contributor) has the
>   right to designate portions of the Covered Code as
Multiple-Licensed.
>   Note the Covered Code INCLUDES Modifications contributed by others.
>   As the Multiple Licensed code can be made available under ANY
license
>   (provided is is also made available under the MPL) this in practice
>   allows the ID to do a very OVPL-like thing, and run a completely
>   proprietary version.

Your characterization of MPL 1.1 is completely wrong.  Since there is
no license back from Contributor to Initial Developer, except insofar
as Initial Developer may obtain a copy of Contributor Version under
MPL (or other license which might have have been applied to
Multiple Licensed code at the time of original publication), there is
no license for ID to take any Contributor Modifications and make them
proprietary.

> note that it is incredibly similar to the OVPL provision you are
objecting to.

No, it's not.  The part of OVPL I object to is the mandatory
license back to ID, which is conspicuously absent in MPL/CPL/EPL/CDDL.

And by the way ... since you didn't respond the first time around ...
let me ask the lawyers who read this list again about the 
enforceability of said mandatory license back.  Since it is part of a 
bare license and is not backed up by an actual, signed agreement
between the parties (as is the case in an open source project with
a contributor's agreement), is it enforceable?  IANAL,
but I strongly suspect my legal colleagues would far, far prefer
to have an actual contract to establish the provenance of any
code we would ever take into a proprietary SW product.

Andy Wilson
Intel Open Source Technology Center