13 ms·

TPP banning requirements to transfer or access to source code of software

384 points by SomeoneWeird 11y ago

dak1 11y ago
These are rules for States. It has no bearing whatsoever on the GPL. 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.
- zxcvcxz 11y ago
  Sounds pretty bad to me.
- deleted 11y ago
  [deleted]
- crdoconnor 11y ago
  >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. Since when is that a good thing?
  - tylermauthe 11y ago
    Since Capitalism ;)
  - michaelt 11y ago
    America hopes to use TPP as a model for a similar deal with China, so America has insisted on a bunch of rules you'd only expect in a trade deal with a banana republic - like investor-state dispute settlement. 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-is-it https://hbr.org/2010/12/china-vs-the-world-whose-technology-...
    - crdoconnor 11y ago
      The TPP is actually supposed to exclude China and create a competing trade bloc. It was even called the "everybody but China deal" by some people. All part of Obama's "pivot to Asia"... supposedly. However, given the contents of the treaty, I don't think this exclusion is something that really bothers China. China wanted in on the WTO bad. Real bad. China doesn't really care about the TPP.
      - kuschku 11y ago
        To quote Obama: > The TPP means that America will write the rules of the road in the 21st century. http://in.reuters.com/article/2015/11/05/trade-tpp-idINKCN0SU0SR20151105 http://in.reuters.com/article/2015/11/05/trade-tpp-idINKCN0S... It very much sounds like they’re treating the rest of the world as colonies.
        jessaustin 11y ago
        Yeah, but they say that in order to appeal to us voters, who are assumed all to be ignorant jingoist buffoons, ready to support any idiocy so long as it can be imposed on foreigners. It's actually like many other political efforts in this country, in that only the interests of the very richest donors, corporations, and lobbyists are considered.
        crdoconnor 11y ago
        Obama sees the TPP as a key part of his legacy (along with Obamacare). I think that sentence might have been as much about self-aggrandizement as it was jingoism. He really seems to think that the TPP is a key plank in shoring up American power in Asia. Which, if it were a better treaty, it might.
        oldmanjay 11y ago
        Not colonies, markets. The connotations of your word choice seem solely intended to make emotional connections that the reality does not support.
  - briandear 11y ago
    Since Microsoft and Apple spend hundreds of millions developing that code. To let a country 'inspect' it is to put valuable intellectual property at risk. Would you trust China to inspect your source code for a project you spent millions developing a unique technology? Should Boeing open source their aircraft wing designs? To suggest such is ludicrous. Do you really want governments with access to everyone's source code?
    - e12e 11y ago
      I'm not sure I'd want to allow China to sell a "secure operating system" to government agencies - and not be able to demand source code access as part of the bidding process. I'm not sure I'd want a US company to supply hardware/OS to schools, and not be able to stipulate source code availability in the contract. I'm not sure if this is the kind of things that this makes illegal -- but I wouldn't be surprised if it is.
- xg15 11y ago
  It also would prevent government agencies from demanding i.e. the source code of a car's ECU to verify its safety and emissions behavior. 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.
  - stingraycharles 11y ago
    Playing the devil's advocate here, but you shouldn't need access to a car's source code to measure its emissions. The test is broken, not the software.
    - 15155 11y ago
      Expounding further - what government agency has the time or money to actually sift through mountains of source code? From a pure financial standpoint, there's no possible way that it isn't cheaper to just measure real emissions than attempt some kind of software analysis for every version of every vehicle on the market. Furthermore, an agency inspecting source code has absolutely no way to tell whether or not that the source they've been given is actually what's running on a car.
      - IshKebab 11y ago
        You not only have to sift through the code, but compile and flash it yourself.
      - granos 11y ago
        If you have source code then you can tell whether a particular executable was built from said source code. Pull the executable out of the car and also build the source code yourself as instructed by the manufacturer, compare the two binaries. If the binaries don't match, then whatever certification the device needs automatically fails and it cannot be sold. What that means is that later on, if "Something Bad" happens, you are in a position to be certain of what code was running. This makes investigation much easier as there is no chance that the original source code cannot be found when needed later. This does get a bit more complicated with software updates, especially OTA updates.
- zwarag 11y ago
  > It also helps to prevent States from demanding and acquiring encryption or other private keys 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.
  - jacquesm 11y ago
    > Well, if our governments could see into the code. They could tell us. They could but they never would.
    - namlem 11y ago
      The US government wouldn't, but wouldn't it only take one? Iceland might do it.
- mcv 11y ago
  I think it primarily bans states from using access to the source code to prevent vendor lock-in. States tend to invest in enormous software projects. If they need specific new features, and the original vendor is unable or unwilling to provide those for a reasonable price, this would prevent the state from going to someone else to continue development. The original vendor will be able to ask unreasonable prices. 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.
- kbutler 11y ago
  There are trade-offs in this. It means states cannot require code for certification, inspection, and continued development in case of abandonment. But it also means that states cannot require code for copying and illicit use. I prefer the more open options.
- marcosdumay 11y ago
  Maybe not everything in it is bad, but this part is very bad. 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.
  - maxerickson 11y ago
    They can still do both of those things, they just can't stop the import of software that has not been inspected or had the source shared. 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.
  - deleted 11y ago
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- deleted 11y ago
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- andrewmutz 11y ago
  Just to agree with this point and elaborate: when the text uses the word "party" it refers to a nation signing the treaty, and not people. 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.
  - riskable 11y ago
    In a State where the GPL is enforceable would it be a violation of the TPP to require that a foreign company comply with the GPL and release the source code? I think that's the $1,000,000 question.
    - s73v3r 11y ago
      No, because that's just enforcing a private contract.
    - pawelk 11y ago
      As I understand it: a government can not say to a foreign company "we won't buy your software / won't allow your product in our market unless you give us the source code" and that's it. It has nothing to do with GPL, possibly with the exception that writing "the provided software shall be released under GPL license" into government-sponsored bids would be illegal as it basically forces a company to provide the source code as a requirement to do business.
- lumberjack 11y ago
  Is that a good thing?
- DannyBee 11y ago
  So, as an actual lawyer i actually think i disagree with you in practice. 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?)
  - bcg1 11y ago
    Danny, 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?
- skwirl 11y ago
  What I've been gathering is that there is no way the text of the TPP could have been interpreted favorably because people had already made up their minds before seeing a word of it. Every single thing in it is getting the most negative, (often) far fetched interpretation imaginable to fit the predefined narrative. FUD wins the day. FUD always wins the day.
- phkahler 11y ago
  To me, it says a government can not mandate the use of open source software: "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?
  - pbhjpbhj 11y ago
    I've got to agree this seems like an offensive against democratic movement towards open source being required in the public sector. 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.
- RexRollman 11y ago
  Even a broken clock is correct twice a day.
- NickHaflinger 11y ago
  "These are rules for States. It has no bearing whatsoever on the GPL." 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.
  - snowwrestler 11y ago
    That is not what investor-state dispute resolution does. If it was, the GPL would have been broken a long time ago because ISDS has been part of bilateral treaties for decades. 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.
- Zigurd 11y ago
  So you're not allowed to mandate that back-doors are added to software. But you're not able to look for them in systems you buy for what might be security or infrastructure systems?
- quadrangle 11y ago
  Just because this clause is completely unrelated to the GPL doesn't make the clause okay. It's still shitty because it blocks democratic governance options to have policies that require source release for various situations (such as requiring Open Source for government software use or making policies that software in schools needs to be Open Source etc)
randallsquared 11y ago
"Party" here means party to the treaty, right? So, governments can't require source disclosure (except for critical infrastructure), but this specifically exempts contracts about such from this rule: > [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?
- debacle 11y ago
  It prevents the government from saying "You can't sell your software in our country unless we can see the code." And that's about it.
forgotpwtomain 11y ago
So in short, if I understand this correctly, the US government (and any other government party to the treaty) will for example be unable to insist that Volkswagen (or any other manufacturer) open source their future emissions control software (as a condition for regulatory compliance) ?
- MattyMc 11y ago
  Without a court order, at least.
  - tux3 11y ago
    Wasn't there some notion of an international TPP court that could dispute nations' decisions?
    - kevin_b_er 11y ago
      Volkswagon could sue for their expected future profits. A private arbitration court where the judges are corporate lawyers will decide if the court of a sovereign nation is somehow inhibiting VW's future possible profit. The health and safety of the citizens will not be considered. The TPP is a government signing away its sovereignty and duty to protect its citizens, for both will take second place to expected future profits.
      - sitkack 11y ago
        So it makes all governments that sign it banana republics of the corporations? If I get to work for Tyrell Corp, I am in!
- crdoconnor 11y ago
  They can still do this. However VW can later sue them for damages equal to their lost profits in a secret court. It will certainly make it a lot easier for VW lobbyists to kill legislation intended to regulate them this way.
wheaties 11y ago
Would this prevent us from requiring VW make available it's source code? Not a lawyer.
- Xixi 11y ago
  Germany is not part of the TPP, but assuming it were: - 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.
  - usrusr 11y ago
    But think of all those millions of cars VW would sure love to sell in the USA via their soon to be founded Australian subsidiary... 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?
    - HappyTypist 11y ago
      Yes. And this is actually one of the benefits of nation states signing the TPP!
- PMan74 11y ago
  Why would you want VW to make available its source code?
  - lucozade 11y ago
    I believe the implication is that, if they were forced to release their source then either: 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.
  - saint_fiasco 11y ago
    To audit the firmware of the emission control systems in their cars, for example.
akerro 11y ago
Could anyone rewrite cited part in plain-English? I have troubles understanding it.
- rdancer 11y ago
  Are you the fine article's author?
saurik 11y ago
The "parties" of a treaty are governments. This has nothing to do with GPL. This is saying that a government can't say "you aren't allowed to sell software in the country of Frain as a non-Frainian unless you provide the source code for that product (whether to the end user or to the government)". They leave an exception for "critical infrastructure", because it was hard to argue that the government of Frain shouldn't be able to require that nuclear control software come with source code. Essentially, I don't see why this clause is concerning. It is clearly a form of pandering to the interests of software developers reliant on intellectual property rights, but only in a way that seems to me mostly about forcing capitalism on nation states that might disagree with its premise.
- venomsnake 11y ago
  Well, you will be surprised how much can be classified as critical. I will just put one copy of windows in a powerplant. Somewhere.
- lloydsparkes 11y ago
  Although any nation state that does not like capitalism, surely would not be signing a trade agreement to open up trading markets.
- deleted 11y ago
  [deleted]
- chronial 11y ago
  I can't see how this about capitalism. Showing source code to anybody (government or end user) does not make you loose your rights to that source code or the compiled application. 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.
  - dataker 11y ago
    >Showing source code to anybody (government or end user) does not make you loose your rights to that source code or the compiled application. You lose control over your own property. That's enough. Similar to police officers entering your home without a warrant.
jchrisa 11y ago
Will this impact governments' efforts to move to open source?
- RIMR 11y ago
  No. This just makes it unlawful to force a company to open it's closed-source software as a condition of entering a market.
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dataker 11y ago
This shows how the TPP could've been something great. 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.
- jessaustin 11y ago
  If it had hooves and a tail then it could have been a horse. 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.
jumperjake 11y ago
This might be good news for open source: No competent government will use software with classified information if it can't audit the code.
igl 11y ago
I can only think of TPP/TIPP as Protectionism... how can this go well?
- cJ0th 11y ago
  That's what I've been wondering. They say these treaties facilitate trade between countries. But it actually looks more like they just shakes things. The result being a new, wild west trade environment in which the rules the players abide to are yet to be found.
scotty79 11y ago
Actually this should (and I believe some day will) be mandatory. Everyone who wants to take money for software should be obliged to disclose full source code to purchaser. In case of mass market software it would be just publishing the source code. 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.
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kazinator 11y ago
The "Party" here refers to a political entity; a Party to the agreement among states. 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.
franzpeterstein 11y ago
https://web.archive.org/web/20151106020038/http://www.keionline.org/node/2363 https://web.archive.org/web/20151106020038/http://www.keionl...
riskable 11y ago
An interesting side effect of this would be the invalidation of the Nevada law requiring the source code for all electronic gambling machines be disclosed in order to operate in that state. 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": http://www.dhs.gov/information-technology-sector http://www.dhs.gov/information-technology-sector
kristopolous 11y ago
This TPP is such bad news. I've never been politically active enough to want to "run a campaign" but honestly, this thing is really motivating me to take time out of my busy schedule ... I feel like it's such an uphill battle to get this thing defeated.
fastmark 11y ago
If a government wanted to give out Linux PCs to children. Then, the students could require the government to provide the open source software as it part of the copyright condition of Linux. But the government couldn't require the distributor of the Linux PC to provide the source code. What happens? Would it be illegal for the government to buy Linux PCs for civilians? Note: a Linux PC could be a smart card used for identification, voting, a licence, etc.
- iwwr 11y ago
  Those who use those machines have standing to ask for the source code, as per the GPL.
yourepowerless 11y ago
So once this becomes law ( and surely it will ) how do these finer points of the law get decided, will it be done by the arbitration panel, ie the high paid lawyers who take turns being plaintiff, defendant, and judge?
akerro 11y ago
I remember a story that Russian government required MS to deliver their source code of windows to prove there are no backdoors. This will be banned now and no one will ever be allowed to ask for source code to prove it's safe and spyware free.
xmly 11y ago
TPP is no double political union instead of economical partners.
hackuser 11y ago
Does anyone know anything about the authors, Knowledge Ecology International, or their predecessor Consumer Project on Technology (CPTech)? They look interesting but their about page doesn't tell me very much.
rdancer 11y ago
Judging by the stark lack of intelligence displayed by these attacks on TTP, it is probably a fine treaty.
PostThisTooFast 11y ago
Doesn't this prevent Nevada and anyone else from demanding source code for slot machines and other gambling machines, to audit it for backdoors and other flaws? The last I heard, they're not even allowed to use off-the-shelf video drivers. Every line of code has to be (theoretically, anyway) audited by gaming authorities. I suppose those are usually delivered under a "negotiated contract."
- sitkack 11y ago
  Too bad this isn't actually done for voting machines and ECUs.
sitkack 11y ago
Software that is critical for public safety (and it is a lot) should be required to be one file as part of the product certification. If you have coded a safety interlock in software, that software should be viewable by the public. Toyota should have been required to submit their source with NHTSA.

384 points by SomeoneWeird 11y ago

dak1 11y ago

These are rules for States. It has no bearing whatsoever on the GPL. 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.

zxcvcxz 11y ago
Sounds pretty bad to me.
deleted 11y ago
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crdoconnor 11y ago
>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. Since when is that a good thing?
- tylermauthe 11y ago
  Since Capitalism ;)
- michaelt 11y ago
  America hopes to use TPP as a model for a similar deal with China, so America has insisted on a bunch of rules you'd only expect in a trade deal with a banana republic - like investor-state dispute settlement. 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-is-it https://hbr.org/2010/12/china-vs-the-world-whose-technology-...
  - crdoconnor 11y ago
    The TPP is actually supposed to exclude China and create a competing trade bloc. It was even called the "everybody but China deal" by some people. All part of Obama's "pivot to Asia"... supposedly. However, given the contents of the treaty, I don't think this exclusion is something that really bothers China. China wanted in on the WTO bad. Real bad. China doesn't really care about the TPP.
    - kuschku 11y ago
      To quote Obama: > The TPP means that America will write the rules of the road in the 21st century. http://in.reuters.com/article/2015/11/05/trade-tpp-idINKCN0SU0SR20151105 http://in.reuters.com/article/2015/11/05/trade-tpp-idINKCN0S... It very much sounds like they’re treating the rest of the world as colonies.
      - jessaustin 11y ago
        Yeah, but they say that in order to appeal to us voters, who are assumed all to be ignorant jingoist buffoons, ready to support any idiocy so long as it can be imposed on foreigners. It's actually like many other political efforts in this country, in that only the interests of the very richest donors, corporations, and lobbyists are considered.
        crdoconnor 11y ago
        Obama sees the TPP as a key part of his legacy (along with Obamacare). I think that sentence might have been as much about self-aggrandizement as it was jingoism. He really seems to think that the TPP is a key plank in shoring up American power in Asia. Which, if it were a better treaty, it might.
      - oldmanjay 11y ago
        Not colonies, markets. The connotations of your word choice seem solely intended to make emotional connections that the reality does not support.
- briandear 11y ago
  Since Microsoft and Apple spend hundreds of millions developing that code. To let a country 'inspect' it is to put valuable intellectual property at risk. Would you trust China to inspect your source code for a project you spent millions developing a unique technology? Should Boeing open source their aircraft wing designs? To suggest such is ludicrous. Do you really want governments with access to everyone's source code?
  - e12e 11y ago
    I'm not sure I'd want to allow China to sell a "secure operating system" to government agencies - and not be able to demand source code access as part of the bidding process. I'm not sure I'd want a US company to supply hardware/OS to schools, and not be able to stipulate source code availability in the contract. I'm not sure if this is the kind of things that this makes illegal -- but I wouldn't be surprised if it is.
xg15 11y ago
It also would prevent government agencies from demanding i.e. the source code of a car's ECU to verify its safety and emissions behavior. 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.
- stingraycharles 11y ago
  Playing the devil's advocate here, but you shouldn't need access to a car's source code to measure its emissions. The test is broken, not the software.
  - 15155 11y ago
    Expounding further - what government agency has the time or money to actually sift through mountains of source code? From a pure financial standpoint, there's no possible way that it isn't cheaper to just measure real emissions than attempt some kind of software analysis for every version of every vehicle on the market. Furthermore, an agency inspecting source code has absolutely no way to tell whether or not that the source they've been given is actually what's running on a car.
    - IshKebab 11y ago
      You not only have to sift through the code, but compile and flash it yourself.
    - granos 11y ago
      If you have source code then you can tell whether a particular executable was built from said source code. Pull the executable out of the car and also build the source code yourself as instructed by the manufacturer, compare the two binaries. If the binaries don't match, then whatever certification the device needs automatically fails and it cannot be sold. What that means is that later on, if "Something Bad" happens, you are in a position to be certain of what code was running. This makes investigation much easier as there is no chance that the original source code cannot be found when needed later. This does get a bit more complicated with software updates, especially OTA updates.
zwarag 11y ago
> It also helps to prevent States from demanding and acquiring encryption or other private keys 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.
- jacquesm 11y ago
  > Well, if our governments could see into the code. They could tell us. They could but they never would.
  - namlem 11y ago
    The US government wouldn't, but wouldn't it only take one? Iceland might do it.
mcv 11y ago
I think it primarily bans states from using access to the source code to prevent vendor lock-in. States tend to invest in enormous software projects. If they need specific new features, and the original vendor is unable or unwilling to provide those for a reasonable price, this would prevent the state from going to someone else to continue development. The original vendor will be able to ask unreasonable prices. 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.
kbutler 11y ago
There are trade-offs in this. It means states cannot require code for certification, inspection, and continued development in case of abandonment. But it also means that states cannot require code for copying and illicit use. I prefer the more open options.
marcosdumay 11y ago
Maybe not everything in it is bad, but this part is very bad. 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.
- maxerickson 11y ago
  They can still do both of those things, they just can't stop the import of software that has not been inspected or had the source shared. 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.
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andrewmutz 11y ago
Just to agree with this point and elaborate: when the text uses the word "party" it refers to a nation signing the treaty, and not people. 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.
- riskable 11y ago
  In a State where the GPL is enforceable would it be a violation of the TPP to require that a foreign company comply with the GPL and release the source code? I think that's the $1,000,000 question.
  - s73v3r 11y ago
    No, because that's just enforcing a private contract.
  - pawelk 11y ago
    As I understand it: a government can not say to a foreign company "we won't buy your software / won't allow your product in our market unless you give us the source code" and that's it. It has nothing to do with GPL, possibly with the exception that writing "the provided software shall be released under GPL license" into government-sponsored bids would be illegal as it basically forces a company to provide the source code as a requirement to do business.
lumberjack 11y ago
Is that a good thing?
DannyBee 11y ago
So, as an actual lawyer i actually think i disagree with you in practice. 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?)
- bcg1 11y ago
  Danny, 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?
skwirl 11y ago
What I've been gathering is that there is no way the text of the TPP could have been interpreted favorably because people had already made up their minds before seeing a word of it. Every single thing in it is getting the most negative, (often) far fetched interpretation imaginable to fit the predefined narrative. FUD wins the day. FUD always wins the day.
phkahler 11y ago
To me, it says a government can not mandate the use of open source software: "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?
- pbhjpbhj 11y ago
  I've got to agree this seems like an offensive against democratic movement towards open source being required in the public sector. 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.
RexRollman 11y ago
Even a broken clock is correct twice a day.
NickHaflinger 11y ago
"These are rules for States. It has no bearing whatsoever on the GPL." 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.
- snowwrestler 11y ago
  That is not what investor-state dispute resolution does. If it was, the GPL would have been broken a long time ago because ISDS has been part of bilateral treaties for decades. 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.
Zigurd 11y ago
So you're not allowed to mandate that back-doors are added to software. But you're not able to look for them in systems you buy for what might be security or infrastructure systems?
quadrangle 11y ago
Just because this clause is completely unrelated to the GPL doesn't make the clause okay. It's still shitty because it blocks democratic governance options to have policies that require source release for various situations (such as requiring Open Source for government software use or making policies that software in schools needs to be Open Source etc)

randallsquared 11y ago

"Party" here means party to the treaty, right? So, governments can't require source disclosure (except for critical infrastructure), but this specifically exempts contracts about such from this rule: > [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?

debacle 11y ago
It prevents the government from saying "You can't sell your software in our country unless we can see the code." And that's about it.

forgotpwtomain 11y ago

So in short, if I understand this correctly, the US government (and any other government party to the treaty) will for example be unable to insist that Volkswagen (or any other manufacturer) open source their future emissions control software (as a condition for regulatory compliance) ?

MattyMc 11y ago
Without a court order, at least.
- tux3 11y ago
  Wasn't there some notion of an international TPP court that could dispute nations' decisions?
  - kevin_b_er 11y ago
    Volkswagon could sue for their expected future profits. A private arbitration court where the judges are corporate lawyers will decide if the court of a sovereign nation is somehow inhibiting VW's future possible profit. The health and safety of the citizens will not be considered. The TPP is a government signing away its sovereignty and duty to protect its citizens, for both will take second place to expected future profits.
    - sitkack 11y ago
      So it makes all governments that sign it banana republics of the corporations? If I get to work for Tyrell Corp, I am in!
crdoconnor 11y ago
They can still do this. However VW can later sue them for damages equal to their lost profits in a secret court. It will certainly make it a lot easier for VW lobbyists to kill legislation intended to regulate them this way.

wheaties 11y ago

Would this prevent us from requiring VW make available it's source code? Not a lawyer.

Xixi 11y ago
Germany is not part of the TPP, but assuming it were: - 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.
- usrusr 11y ago
  But think of all those millions of cars VW would sure love to sell in the USA via their soon to be founded Australian subsidiary... 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?
  - HappyTypist 11y ago
    Yes. And this is actually one of the benefits of nation states signing the TPP!
PMan74 11y ago
Why would you want VW to make available its source code?
- lucozade 11y ago
  I believe the implication is that, if they were forced to release their source then either: 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.
- saint_fiasco 11y ago
  To audit the firmware of the emission control systems in their cars, for example.

akerro 11y ago

Could anyone rewrite cited part in plain-English? I have troubles understanding it.

rdancer 11y ago
Are you the fine article's author?

saurik 11y ago

The "parties" of a treaty are governments. This has nothing to do with GPL. This is saying that a government can't say "you aren't allowed to sell software in the country of Frain as a non-Frainian unless you provide the source code for that product (whether to the end user or to the government)". They leave an exception for "critical infrastructure", because it was hard to argue that the government of Frain shouldn't be able to require that nuclear control software come with source code. Essentially, I don't see why this clause is concerning. It is clearly a form of pandering to the interests of software developers reliant on intellectual property rights, but only in a way that seems to me mostly about forcing capitalism on nation states that might disagree with its premise.

venomsnake 11y ago
Well, you will be surprised how much can be classified as critical. I will just put one copy of windows in a powerplant. Somewhere.
lloydsparkes 11y ago
Although any nation state that does not like capitalism, surely would not be signing a trade agreement to open up trading markets.
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chronial 11y ago
I can't see how this about capitalism. Showing source code to anybody (government or end user) does not make you loose your rights to that source code or the compiled application. 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.
- dataker 11y ago
  >Showing source code to anybody (government or end user) does not make you loose your rights to that source code or the compiled application. You lose control over your own property. That's enough. Similar to police officers entering your home without a warrant.

jchrisa 11y ago

Will this impact governments' efforts to move to open source?

RIMR 11y ago
No. This just makes it unlawful to force a company to open it's closed-source software as a condition of entering a market.

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dataker 11y ago

This shows how the TPP could've been something great. 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.

jessaustin 11y ago
If it had hooves and a tail then it could have been a horse. 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.

jumperjake 11y ago

This might be good news for open source: No competent government will use software with classified information if it can't audit the code.

igl 11y ago

I can only think of TPP/TIPP as Protectionism... how can this go well?

cJ0th 11y ago
That's what I've been wondering. They say these treaties facilitate trade between countries. But it actually looks more like they just shakes things. The result being a new, wild west trade environment in which the rules the players abide to are yet to be found.

scotty79 11y ago

Actually this should (and I believe some day will) be mandatory. Everyone who wants to take money for software should be obliged to disclose full source code to purchaser. In case of mass market software it would be just publishing the source code. 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.

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kazinator 11y ago

The "Party" here refers to a political entity; a Party to the agreement among states. 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.

franzpeterstein 11y ago

https://web.archive.org/web/20151106020038/http://www.keionline.org/node/2363 https://web.archive.org/web/20151106020038/http://www.keionl...

riskable 11y ago

An interesting side effect of this would be the invalidation of the Nevada law requiring the source code for all electronic gambling machines be disclosed in order to operate in that state. 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": http://www.dhs.gov/information-technology-sector http://www.dhs.gov/information-technology-sector

kristopolous 11y ago

This TPP is such bad news. I've never been politically active enough to want to "run a campaign" but honestly, this thing is really motivating me to take time out of my busy schedule ... I feel like it's such an uphill battle to get this thing defeated.

fastmark 11y ago

If a government wanted to give out Linux PCs to children. Then, the students could require the government to provide the open source software as it part of the copyright condition of Linux. But the government couldn't require the distributor of the Linux PC to provide the source code. What happens? Would it be illegal for the government to buy Linux PCs for civilians? Note: a Linux PC could be a smart card used for identification, voting, a licence, etc.

iwwr 11y ago
Those who use those machines have standing to ask for the source code, as per the GPL.

yourepowerless 11y ago

So once this becomes law ( and surely it will ) how do these finer points of the law get decided, will it be done by the arbitration panel, ie the high paid lawyers who take turns being plaintiff, defendant, and judge?

akerro 11y ago

I remember a story that Russian government required MS to deliver their source code of windows to prove there are no backdoors. This will be banned now and no one will ever be allowed to ask for source code to prove it's safe and spyware free.

xmly 11y ago

TPP is no double political union instead of economical partners.

hackuser 11y ago

Does anyone know anything about the authors, Knowledge Ecology International, or their predecessor Consumer Project on Technology (CPTech)? They look interesting but their about page doesn't tell me very much.

rdancer 11y ago

Judging by the stark lack of intelligence displayed by these attacks on TTP, it is probably a fine treaty.

PostThisTooFast 11y ago

Doesn't this prevent Nevada and anyone else from demanding source code for slot machines and other gambling machines, to audit it for backdoors and other flaws? The last I heard, they're not even allowed to use off-the-shelf video drivers. Every line of code has to be (theoretically, anyway) audited by gaming authorities. I suppose those are usually delivered under a "negotiated contract."

sitkack 11y ago
Too bad this isn't actually done for voting machines and ECUs.

sitkack 11y ago

Software that is critical for public safety (and it is a lot) should be required to be one file as part of the product certification. If you have coded a safety interlock in software, that software should be viewable by the public. Toyota should have been required to submit their source with NHTSA.