Re: Misplaced modifier in Postgresql license - Mailing list pgsql-general

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> "Permission to use, copy, modify, and distribute this software and its
> documentation for any purpose, WITHOUT FEE, and without a written
> agreement is hereby granted, provided that the above copyright notice
> and this paragraph and the following two paragraphs appear in all
> copies."

> The result of this ambiguity is that the latest CD release of OpenBSD
> (3.4) no longer includes Postgresql.

It certainly would have been nice if they would have consulted with us
before taking such an action, or at least let us known about it themselves.
Nonetheless, thank you for taking the time to mail this list. Licensing
can be a touchy area, but I'll try not to shoot the messenger.

> I have used CAPS to highlight the apparent error.  There are two ways
> to interpret this statement.  One interpretation is that permission is
> given and no fee will be charged for the granting of that permission.
> The other is that permission is given so long as by using the software
> no fee is charged to others.

There are a number of issues related to this issue. Six of them, actually:

1. Is the license unclear due to that clause?
2. Should the 'misplaced' clause be of concern?
3. Should changes be made to the licensing text?
4. Can changes be made to the licensing text?
5. If so, how do we do it?
6. Who has copyright to the PostgreSQL source code?

Short answers as I see them: Yes,No,No,Yes,Easily,Individual contributors.

1. Is the license unclear due to that clause?

Yes, it could be construed both ways. I would not go so far as to label it
as "unclear" or "ambiguous", as the actual meaning has been obvious to people
who have been reading it for many, many years. However, it is technically
correct that it could be read as "cannot use if you charge for it."

2. Should the 'misplaced' clause be of concern?

Although it could be construed as "you cannot charge", there are compelling
reasons why this is not the case. A quick recap:

 Permission to use, copy, modify, and distribute this software and its
 documentation for any purpose, without fee, and without a written
 agreement is hereby granted, provided that the above copyright notice
 and this paragraph and the following two paragraphs appear in all
 copies.

First and foremost, the fact that there is a "provided" clause strongly
suggests that the conditions, exceptions, and qualifiers are stated /after/
this clause. This is normally how things work: you lay everything out, and
then add in the restrictions. Second, if we were to assume that the
"without fee" applies to the "purpose", then we must also assume that the
license is stating that it cannot be distributed *without* a written
agreement. This seems very absurd and further weakens the "without fee"
argument. Third, the fact that their exists a revised version of the
license from the original authors (University of California) which clears
up the misplaced modifier is an indication that the "common" interpretation
of what the original writers were trying to say is the correct interpretation.

One thing that that seems to be overlooked in all of this, however, is that
this license has a long history of use, and this is a very, very important
thing in the law. Many companies have sold software (for a fee) that included
PostgreSQL, and nobody has raised this issue until now. Everyone associated
with the project has always understood (and stated) that PostgreSQL can be
sold for a fee. The long history of this 'contract', and the fact that nobody
has ever objected to the terms of it, makes the license bulletproof in court.
You cannot have a license that is interpreted one way for many years (and
among many parties) and then come along and try to throw in a unique
interpretation of it.

3. Should changes be made to the licensing text?

Although there are different interpretations, I do not feel it that the
uncommon one is strong enough to warrant any concern, either by the
PostgreSQL community or by those who include PostgreSQL in products they sell
for a fee (e.g. the OpenBSD CD). There would be no harm in moving to a
clearer license, but neither would there be harm in keeping the current one.

4. Can changes be made to the licensing text?

That's a tough one (see #6) but the quick answer is "yes". If we were to
make a change that was entirely compatible with the existing license, I do
not foresee anybody having a problem with it. Probably the only people who
would have a standing to object would the original authors, and if we were
to change it to one of their newer wordings of the same license, there
should be no problems.

5. If so, how do we do it?

Cut and paste. :) Probably with a post to the general list asking if anyone
(especially past contributors) would have any objections, and then committing
the change to the COPYRIGHT file.

6. Who has copyright to the PostgreSQL source code?

An interesting question. Certainly the Regents of the University of California
owned the original copyright, but I suspect that the portion of the codebase
that has remained unchanged is very small indeed. Unlike some projects,
contributors are not asked or required to assign the copyright to a single
entity (e.g. The Apache Foundation), so one presumes that the copyright is
held by the original contributors. One could also argue that there is an
implicit assigning of the rights to the "PostgreSQL Global Development Group",
(PGDG) because no individual copyright notices exists anywhere (not entirely
true, but we'll skip over that), and thus the copyright really does belong
to the PGDG unless people state otherwise. (Of course, the PGDG is not a
real entity...)

I hope that the BSD people will reconsider their move and put PostgreSQL
back on the CD, without a license change. The existing one is more than
strong enough to survive any legal challenge based on the "misplaced modifier."

- --
Greg Sabino Mullane greg@turnstep.com
PGP Key: 0x14964AC8 200312011619

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