This prevents a country from forcing somebody like Microsoft or Apple to give up their source code for "inspection" in order to access their market. It also helps to prevent States from demanding and acquiring encryption or other private keys (there's a separate section that also explicitly forbids mandating backdoors be added).
Not everything in the TPP is bad.
Imagine for a second that the US gets tough on GPL violators, and says "well, if you want to sell android devices in the US, you have to produce the GPL source code".
Or something even simpler, along the lines of "products marketed in the US must comply with all licensing obligations of software that it contains".
This one actually happens behind the scenes sometimes right now, though you don't see it.
I believe they would not be allowed to do that under this provision.
It clearly falls into:"1. No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory."
3 is no exception:
"3. Nothing in this Article shall preclude: (a) the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts;"
The GPL and other open source licenses are arguably not commercially negotiated contracts.
So yeah, it doesn't stop private citizens or parties from doing whatever they want. It may stop you from being able to create laws and enforce them at import/export time around actually complying with OSS licenses.
Which is really not great, since it in practice means free reign.
You will never get state supported companies in their own countries to comply with licenses. Generally, your only course of action is to try to enforce elsewhere, or ban import/export.
Here, in the case of the US, you will not be allowed to ban import unless all of that open source software is completely US written.
(since the provision limits requiring "source code of software owned by a person of another Party". Of course, what it means by "software owned by a person of another Party" is also up in the air, since most open source software has many copyright owners , so does it mean complete ownership, partial ownership, or what?)
This is the key issue. It seems like a copyright license to code under GPL would be commercial, in the sense that the parties are exchanging a license for the recipient undertaking the GPL obligations. Whether it's "negotiated" seems like a more difficult question.
One interpretive guide could be to look to the reason for the provision. I suspect the purpose was to allow for source-code escrow agreements in things like enterprise software deals. It would be odd for the enforceability of those provisions to turn on the degree to which the parties "negotiated," so I suspect this will be a low bar.
Rather, I suspect the term "negotiated" is intended to block end-runs around the default rule. Otherwise, governments could obligate copyright holders to burden their code with GPL-like code, e.g., a reg saying you can only provide voting machines if they are based on a modified version of the Linux kernel.
So I think GPL source-code disclosure obligations remain enforceable, absent coercive acts by a government to force parties to undertake those obligations. But this is really speculative.
If the TPP does not impose the same restrictions on contracts between private parties, that is not a benign thing. Private parties includes corporations, and most contests between legal corporations and "individual natural persons" eventually are settled in the interest of the party with more resources, often the legal corporation. Such challenges may play out in the markets or the courts, or it may play out over an even longer period in the legislature by changing the laws regulating or guiding the markets and courts. Thus, hamstringing the State's ability to have laws counter to this section of the TPP actually saves an entity the time and money which might otherwise have been needed to lobby a State's legislative bodies or develop the legal framework by way of a legal process. It fixes the playing field in favor of non State actors. Currently the most powerful non State actors are for profit corporations and privately held companies. This section of the TPP is not at all neutral, if understood to apply only to States. It would then heavily favor corporations and companies, and it would limit State actors and thus their populations. It would favor entities driven by profit motive or the motives of whomever the individuals are that own said private companies. That. Is. Huge. That is a fundamental shift in how, say someone like an American like me, many people might want to govern the communities they are a part of.
In order to distribute software for which you do not own the copyright, you need to have a license. If you do not agree to the license, then it doesn't even get to the stage we are talking about. You can't distribute it anywhere (under international copyright law). If you agree to distribute the source code in order to get a license, then you have agreed to do that. Is that not what is meant by a commercially negotiated contract? There is consideration on both sides (one party gets to use the software, the other party ensures that the source code is available to users of the software).
Either way, I think this wording is terrible and it worries me greatly. However, my layman's view seems to fall on the side of the GPL being OK. I would be grateful for explanations on what I may have misunderstood.
In your opinion how does this affect the ability of governments to pass laws requiring them to use only free and open source software? I think this is incredibly important not only for software freedom but for a properly functioning free society in general (think of voting, financial accounting and digital currencies, etc). Would such use be considered "critical infrastructure" or does this provision preclude passing such laws?
The treaty specifically states a party cannot compel the owner to reveal the source code. Arguably someone violating the GPL or similar license is not the actual owner of the code.
To make a poor analogy, imagine that the law said States can't require people to kneel and kiss a pinky ring in order to enter the State. However, they can require a valid passport, even if in Guilder in order to get a passport you have to kneel and kiss the pinky ring of the King of Guilder.
From my (not a lawyer) reading, it seems to suggest that the government can't forbid the sale of closed-source software.
Also, you don't need a license to use software, which is why the GPL is irrelevant to end users. But I can't see how someone choosing the use GPLed software is doing anything different than downloading the Torque 3d engine, etc. It's freely accessible, but you have to agree to some conditions to legally do certain things with it.
So, just because a piece of legal language can be interpretted a certain way, that does not mean it is likely to prevail in court. In this sort of case, I'd be surprised if any TPP negotiator or representative, or any documentation from the TPP process, will indicate that this language was intended to break the GPL and open source in general.
But that's unrelated to today's GPL situation, because the way the GPL works today is: "I as a copyright holder sue you for copyright infringement because you don't have my permission to my work… by the way, I'll give you permission if you follow these license terms…"
UPDATE--saw you already addressed this at the end of your post. Agreed.
The only way out of this would be to declare car ECUs (or other systems) as "critical infrastructure", the definition of which I'm sure will be subject to many political tug-of-wars once this is implemented.
I haven't studied it closely to see how narrow those meanings are, but it seems like emissions control software might fall under infrastructure (I also guess that mass market is talking more about shrink wrap software than embedded software, you don't use an ECU in the same way that you use a word processor).
When Peru made a law demanding that the state has access to the source code for that exact purpose, Microsoft was upset, because they didn't want to play by those rules, but also doesn't want to lose that market.
Since when is that a good thing?
At present, "Chinese officials have learned to tackle multinational companies, often forcing them to form joint ventures with [Chinese companies] and transfer the latest technology in exchange for current and future business opportunities" [1] which is good for China but bad for America. America wants a treaty with China that will stop them doing that.
Personally I'd be surprised if China went for such a deal, regardless of what happens with TPP.
[1] https://hbr.org/2010/12/china-vs-the-world-whose-technology-...
TPP is designed to give commercial entities equivalent rights to nation states. That's what the 'Investor-State Dispute Settlement' provisions refer to. Under these provisions a commercial entity could 'steal' Open Source code, without the requirement to release the source code. In effect rendering licenses such as the GPL unenforceable. At the very least it may cause a dilution and hinder the growth of the Open Source sector. Now I wonder whose interests that that would advance and who helped to write such provisions.
ISDS is intended to provide standing for a company from one country to request relief from the government of another country. Without ISDS, the Vietnamese national government could simply take whatever U.S. property is located in Vietnam, and the U.S. company would have no recourse.
So when it says "No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory," Party refers to a government.
It means other countries can not have the software they buy inspected for NSA (or whoever else) planted backdoors.
It also means that countries can not ask for source code in a guarantee that the software will remain useful if the company goes away.
What it does not mean is that those countries will stop pirating software. There's no mechanism for enforcing that.
So a government can still choose to use open source software, and have whoever do whatever consulting on that software, they just can't refuse to allow a proprietary vendor to offer their product for sale.
boom, encryption done wrong!!
Look at PGP, source code is open. Nobody can crack it yet.
But DO we know if Apple is really on "our" side or are they just marketing it? Well, if our governments could see into the code. They could tell us. And if you tell me. Well there could be some people working for the government that could leak the code. Well then I tell you, just don't hire people who worked for a company for many years as their lead [[something]].
> Not everything in the TPP is bad. I go by the rule. If it is a big thing and will alter a lot of stuff. It primarily is bad, very very bad. And they got to convince they are doing good.
They could but they never would.
I prefer the more open options.
"No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory."
Or am I misinterpreting that? Does this preclude a government from requiring the use of open source software in some cases? IANAL, but I don't think it precludes government USE of OSS, but I think it means they can not have an open source requirement in a bidding process.
On another note, what IS the purpose of this language in TPP if not a direct attack on open source software?
With all the secrecy one has to try and determine who might have written these clauses (USA multinational corporations presumably) and what the clauses are supposed to achieve (higher profits).
Preventing countries from freely moving away from the strongest capitalist models of software production seems like something that's likely to appear in TPP & TTIP; anything socialist also seems like it's going to be a target.
This is about freedom and the right to self-determination of governments/citizens (and thus also about democracy).
I would like to point out that our patent system is basically something like this: We as a society will protect your intellectual property rights for your machine only if you show us your blueprints.
Sure but, right or wrong, the general consensus of developed countries is that software is protected even if it is closed source. (That is, they have decided that patent protection requires disclosure but copyright protection does not.) A few other countries may disagree, but the whole point of TPP is to harmonize disagreements because (it is claimed) the frictions they introduce are worse than the micro-optimizations that individual states make.
Incidentally, in practice these sorts of disclosure agreements are used by states like China for protectionist reasons, not as part of some open-source ideal.
You lose control over your own property. That's enough. Similar to police officers entering your home without a warrant.
And these non-capitalist countries are?
All countries are capitalist. They may claim otherwise, but if the party that paid for the means of production makes a claim on the value of the produced goods, then they are capitalist. It doesn't matter if the party that provided the capital was a private citizens or a government. If the workers that produced the goods don't have sole claim on the value of what they produced, the system is capitalist. The only difference in the USSR, Maoist China or even North Korea is that the state tried to monopolize capital.
I will just put one copy of windows in a powerplant. Somewhere.
It will certainly make it a lot easier for VW lobbyists to kill legislation intended to regulate them this way.
It isn't a 'secret court':
* 9.23.1 Documents from the complainant are submitted and they should "make them available to the public"
* 9.23.2 "The tribunal shall conduct hearings open to the public"
Of course there is a section (9.23.4) detailing that complainants can withold any 'protected information' so perhaps in practice the process will not be as transparent as proponents would have us believe.
There is nothing about 'damages equal to their lost profits':
* Awards (9.28.4) "the only damages that may be awarded are those that the claimant has proven were sustained in the attempt to make the investment, provided that the claimant also proves that the breach was the proximate cause of those damages. If the tribunal determines such claims to be frivolous, the tribunal may award to the respondent reasonable costs and attorney's fees"
I think there is much that's disagreeable about the TPP but detractors relying on falsehoods opens TPP opposition up to easy attacks relying on the fallacist's fallacy.
[1] http://www.mfat.govt.nz/downloads/trade-agreement/transpacif...
But if, for instance, VW cars were measured to have too high emissions, I see nothing in this article that would prevent justice from demanding access to the source code to audit it.
Alas I would absolutely prefer states to mandate this sort of source code to be open-sourced, but I think that makes me stand firmly in the minority.
It's not so much a question of regulation as establishing a truer cost for what is produced/consumed. If the above is correct the TPP will basically mandate obscurity on (again this particular issue as an example) that indirectly impacts everyone who must continue to exist on this planet.
> [Nothing in this Article shall preclude] the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts
It seems like this wouldn't affect licensing at all, given that licensing is supposedly a contract. Am I missing something?
And that's about it.
It seems like it would also apply to new or existing laws requiring the disclosure of code inside proprietary voting machines, medical equipment, and of course, the Volkswagon ECU. Then again, could those things be considered "critical infrastructure"?
The Department of Homeland Security considers the entire "Information Technology sector" as "critical infrastructure":
- probably not as a blanket precondition to allow them to sell cars,
- probably yes during the course of a trial if their cars were measured to have too strong emissions.
Not a lawyer either.
Extrapolating this some more, might we even see a pattern emerging where some kind of clever legal offshoring could allow domestic companies to get a stronger position vs their own governments?
a) they would have been less likely to deliberately subvert the emissions tests in the code or
b) they were more likely to have been found out earlier.
This is a rule which basically says that governments cannot impose laws that say "thou shalt not sell closed-source mass-market software in this country".
It doesn't translate to "thou shalt sell nothing but closed-source software, and may do so even if it is derived from a copyrighted work whose holders forbid that".
It's a good rule because it reduces government interference in business by a modicum.
As products grow in complexity and corporation grow in power the only way to secure safety of the public would be to prevent corporations from profiting from secrecy.
I suppose those are usually delivered under a "negotiated contract."
Sure, TPP uses the power of governments to impose interest of certain corporations.
In the other hand, TPP gradually weakens national governments by limiting their power over the individual.
Had it been restricted to providing economic cooperation and freedom between countries, it would have been amazing.
Seriously, it's difficult to imagine that the process that produced this could have produced anything else. Everything was done in secret. The few admitted to the proceedings were required mafia-style to agree to their generally corrupt direction and total secrecy ahead of time. The later one got in, the fewer scraps one could beg from the head table. The officials responsible are all looking forward to comfortable corporate positions after the whole mess goes into effect.
These observations typically inspire scores of well-informed "this is simply how it is done in these modern times" rejoinders. As if that weren't an even bigger indictment of these modern times. The comparison that comes to mind is NSA-supplied curve constants in cryptography. Sure NSA might not have derived the constants in such a fashion that would leave them able to break cryptography. At this point, however, why would a thinking human being assume their innocence? When rules for the public are created in public the motivations of the rulemakers can be scrutinized by the public, before the public is subject to those rules. Take for example the just-defeated Ohio pot initiative, which was billed as simple legalization but was in fact a permanent pot-growing monopoly for the few farmers who had paid for the advertising. Those rules did not withstand public scrutiny.
From a giant secret proceeding like this, we can be sure that the problems identified so far by EFF, etc. are only the tip of the iceberg.
