12 ms·

Copyleft terms may become unenforceable in 11 countries due to the CPTPP

270 points by zeveb 8y ago

jasode 8y ago
The relevant text from the linked pdf[1]: >Article 14.17: Source Code >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. >2. For the purposes of this Article, software subject to paragraph 1 is limited to mass-market software or products containing such software and does not include software used for critical infrastructure. >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; To point (1), the text seems like something Steve Ballmer would write to because "GPL is a cancer". To point (2), I wonder if "GNU gcc" is considered "mass-market" or "infrastructure". To point (3), I assume that proprietary software users will want the most narrow definition of "commercially negotiated contracts". This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract". Therefore, copyleft would be null & void. [1] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/official-documents/Documents/14-electronic-commerce.pdf http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/...
- tux1968 8y ago
  So these aren't accidental consequences of provisions meant to address some other issue. These are specifically designed to attack GPL and other copy-left licenses.
  - Myrmornis 8y ago
    Who is behind this antipathy to copyleft? I wasn’t aware it was on the radar of the sorts of entities involved in writing international trade agreements.
  - dragonwriter 8y ago
    They seem on the surface to be designed to attack “source code as a condition of import license” laws,
  - zmmmmm 8y ago
    The original intent was inspired (I think) by countries like China demanding the source code to Windows as a condition of it use in their country. GPL is just collateral damage due to (a) politicians being almost completely ignorant about everything technological, and (b) the whole thing being negotiated in secret with no input. When you put (a) and (b) together, it seems like a miracle if the whole thing is not a disaster.
- ISL 8y ago
  At first glance, text like this may have been included to prevent countries from attempting to claw source code from closed-source software and cloud vendors. It would appear to be troublesome, at a minimum, for copyleft projects, too.
  - sounds 8y ago
    How would a country claw source code from a vendor in another nation, if they did not sign this agreement? File a lawsuit? I suppose the most common method is to seize assets or personnel that are located in-country.
    - ISL 8y ago
      As the provision above states: "as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory." A country could state simply: If we can't audit your code, you can't import, distribute, sell, or use it in our country. See: United States vs. ZTE for a hardware example.
    - dragonwriter 8y ago
      > How would a country claw source code from a vendor in another nation, if they did not sign this agreement? By making it a condition of allowing imports of the product, which is why that's exactly what the provision prohibits.
      - EGreg 8y ago
        And why is that so bad? A nation should be allowed to enforce laws to know the source code of its software because otherwise backdoors could kick in at some point, and other nasty stuff.
        ISL 8y ago
        Such a requirement has positives and negatives, which are dependent upon point of view. From the position of a free-trade agreement, it would be a statement of trust. We trust you enough to be our partner that we won't attempt to claw open your citizens' code if, in return, you don't do so to our citizens' code. Entering such an agreement might be unwise, should a counterparty turn out to be disreputable or irresponsible.
- sounds 8y ago
  The 11 countries who signed (many still need to ratify the treaty). Alphabetical order: 1. Australia 2. Brunei 3. Canada 4. Chile 5. Japan (already ratified) 6. Malaysia 7. Mexico (already ratified) 8. New Zealand 9. Peru 10. Singapore 11. Vietnam Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend.
  - MisterTea 8y ago
    > Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend. In other words: Business as usual.
  - lopmotr 8y ago
    I wish people would stop wanting to micromanage their governments. Some things, like negotiation, military planning, or crime investigation don't work when all their details are made public as they happen. Trade deals are never secret once they're completed so it's not a cover-up. You elect leaders who you believe will work in your interests and leave them to get the job done. If they do it wrong, you can unelect them or their whole party next time. This actually happened in America when people didn't like the TPP that Obama agreed to behind closed doors and they elected Trump who withdrew from it.
    - fjsolwmv 8y ago
      Why is it so important to have business input into treaties but not important to have consumer input? What if we want to hold government accountable?
      - openasocket 8y ago
        With all due respect to the average consumer (including myself), I don't think their input is particularly valuable. They want lower prices for goods and for people not to be laid off. I don't think the average consumer has much to offer on Vietnamese shrimp subsidies and their effect on the global supply chain. Getting input from businesses doesn't mean blindly following them, but they do have a lot of information to offer.
- dragonwriter 8y ago
  > This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract". It's possibly a contract, but it is clearly not “commercially negotiated”, it's a contract (if at all) of adhesion.
  - incompatible 8y ago
    My understanding is that a license is not a contract, but simply permission from one party to do something. A license can be part of a contract e.g., when a license is provided in exchange for money. However, if I just plonk an open source license on a bit of software I wrote, there's no contract with anybody. It's unlikely that invalidating an open source license would be of benefit to a user, since they then have no legal right to make copies of the software.
- kps 8y ago
  I don't see how this has anything to do with license enforcement at all. It only means participating countries can't block the import of closed-source software.
- bunderbunder 8y ago
  I'd want to get an international law expert's take on this before getting too worried. Based on skimming the preamble, it looks to me like "Party" is capitalized to indicate that, within the context of this document, Party has a very specific meaning: One of the nation-states that has entered into this trade agreement. If that's a correct reading, then this might have some unintended consequences around government open source projects, but, since it isn't trying to place any restrictions on anyone who isn't a nation-state, it wouldn't be that much of a threat to copyleft in general. I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."
  - jasode 8y ago
    >I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country." Your interpretation seems reasonable. I'm guessing OSIA and the Linux Journal are interpreting it like this: >No Party (e.g. GNU GCC) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. GCC), or of products containing such software (e.g. GCC), in its territory. The "such software" is misinterpreted as referring back to a hypothetical "GCC" instead of "Atlassian". Your interpretation would be more like: >No Party (e.g. USA) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. Atlassian), or of products containing such software (e.g. Atlassian), in its territory. With that interpretation, the text is a response against China and Russia demanding source code from USA and European tech companies. E.g. https://www.google.com/search?q=china+russia+import+share+source+code https://www.google.com/search?q=china+russia+import+share+so... If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.
- kevin_b_er 8y ago
  For what purpose were these items added? It looks like a direct attack on open source otherwise.
  - Taniwha 8y ago
    it's to stop countries requiring companies from releasing their source code as a condition of use in their countries
- scythe 8y ago
  Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal. More generally, it would seem very out of form for a free-trade deal to include provisions that undermine the freedom of contracts. Contracts are an important part of capitalism, after all.
  - tzs 8y ago
    > Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal You could just as validly say the same thing about pretty much all mass-market software. Replace "copyleft license" with "terms of service" or "end user license agreement". It's hard to think of any mass-market software that would not be covered under that interpretation, which is a strong hint that the interpretation cannot be right. What I believe (3a) is trying to cover cases where a Party (e.g., Australia) is acquiring software for its own use. For instance, suppose Australia wanted to use AgileBits' 1Password [1] on all the government's desktop computers. 1Password is mass-market software, and this treaty would prohibit Australia from requiring that AgileBits make the source available as a condition of selling to consumers in Australia. But if Australia negotiates a deal with AgileBits to supply Australia's government istself with 1Password, rather than the government simply buying it the same way consumers would, (3a) applies and the treaty does not apply. [1] Picked for this example because it is the only well-known mass market software that I could think of offhand that (1) a government might reasonably want to mass deploy internally, and (2) is owned by a company that is in a country (Canada) that will be a Party to this treaty.
- kcolford 8y ago
  This phrasing may be slightly deceptive, but in this instance the word "Party" specifically refers to the countries (and/or their respective government) signing this agreement. All in all, it only says that a government cannot demand the source code to a piece of software that is being exported from another country. Although, they can still force a software developer in their own country to give up the source code to a piece of software. It goes on to add some exceptions but is otherwise very inconsequential. I am not a lawyer, but this a paraphrasing of an explanation given to me by someone who is a copyright/securities lawyer in one of the member countries (Canada).
  - coldacid 8y ago
    How does one specialize in both copyright _and_ securities law? I could understand copyright and real estate or securities and corporate law, but that seems to be a novel pairing.
- pc86 8y ago
  I don't think you need to take "the most narrow definition" of a contract to think that LICENSE.TXT doesn't qualify. Especially when you add the modifier "commercially negotiated" to it. I played no role in negotiating GPL.
- mcguire 8y ago
  I believe the FSF has argued that the GPL is not a contract in order to defend against specifically this problem. Without the GPL, the recipient has no license to redistribute the software. Presumably, that couldn't be enforced in the countries under the treaty, but they would have problems distributing things outside those countries.
- kazinator 8y ago
  Who the hell has ever been in a position to demand the source code to mass-market software as a condition of its use? "I demand the full, buildable source to MS Outlook before accepting this meeting request!" Still, does making this type of demand have to be made against the law?
  - URSpider94 8y ago
    Countries with highly regulated economies dominated by state-run businesses will often make this a condition of winning a government contract. In the sense of, if you want to provide the OS and productivity suite to all of our government offices, you must hand over the source code for “inspection”. When the contract is re-bid in 10 years, you lose out to the new government-owned software company,
- bdowling 8y ago
  There's nothing to see here. "Party" (capitalized) and "person of a Party" have specific meanings in this document, as defined in the definitions section: "Party means any State or separate customs territory for which this Agreement is in force;" "person of a Party means a national or an enterprise of a Party;" (Chapter 1, Section A, Article 1.3, [0]) So the statement "No Party shall require the transfer of..." restricts what a State that signed the treaty may do to the persons and enterprises of another State. For example, China can't require Microsoft to disclose its source code as a condition to selling Windows in China. Regarding the other quote about contracts, the operative part is "Nothing in this Article shall preclude". So this treaty has no effect on terms regarding source code in commercially negotiated contracts. Even if you are of the misguided belief that FOSS licenses are contracts, this provision does not affect them. Finally, FOSS licenses are not contracts because they do not contain bargained-for reciprocal promises. They are grants of rights, subject to terms and conditions. A FOSS license operates as a defense against copyright infringement. If the terms and conditions are not met, then the license is void. The infringer can then be sued for copyright infringement, not breach of contract. This has two important implications: (1) a court won't order specific performance (a contract remedy) in a case of copyright infringement, and (2) a third party has no standing to sue, because where there is no contract there can't be a third-party beneficiary (only the rights-holder may sue). [0] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/official-documents/Documents/ch1-initial-provisions-and-general-definitions.pdf http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/... (Edit: Clarified lack of breach of contract claim.)
  - slavik81 8y ago
    I don't think it really changes anything, but there have been cases where the GPL has been considered a contract. https://perens.com/2017/05/28/understanding-the-gpl-is-a-contract-court-case/ https://perens.com/2017/05/28/understanding-the-gpl-is-a-con...
    - bdowling 8y ago
      No. Even in that case, the GPL wasn’t considered a contract. There was an open offer to anyone, essentially, “If you’d like to use this software, either buy a commercial license or abide by the terms of the GPL.” The defendant accepted the offer by using the software and proclaiming that it would meet the terms of the GPL. That offer and acceptance created a contract. So, the GPL wasn’t the contract itself, but provided the terms for the offeree’s performance.
- smsm42 8y ago
  It says "no Party" - does it mean this only binds the signatories of the treaty - which probably are countries and not individual developers? And if so, I would read it as "we promise there will be no state law to mandate all software in the country be open-source" which seems to be reasonable (even though I never heard about any country trying to pass such a law anyway) not "open source licenses are un-enforceable". Also, it says "owned by person of another Party", so it's mostly even "we promise no import/export bans on non-open-source software", and the intra-governmental actions are not even discussed, only cross-governmental ones. Also (3) says if the government negotiates contracts, it still can require the software to be open-source, it just can't have blanket ban on non-open-source software imports altogether. Am I misreading it or misunderstanding what "Party" means?
jedberg 8y ago
That flowchart looks scary, but I'm missing the part that gets me from A to B. Why are those the outcomes?
lemoncucumber 8y ago
If that part of the GPL is invalid, wouldn't that leave anyone who wanted to distribute GPL-licensed software without a valid license to do so? It seems crazy that it would leave intact the right to distribute given that as it's written that is contingent upon providing the source.
- gmueckl 8y ago
  [Please see edit below] My cursory understanding is that the GPL becomes more like the BSD or MIT license in that it becomes lawful to distribute altered binaries without the corresponding altered source code. However, legal texts are tricky and the correct interpretation of this one my well be different from my current understanding. Edit: ----- After rereading parargraph 1 another three times, I think that the wording of the text suggests a far broader scope than it actually covers. "...as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory." This part of the sentence limits the application of the rest of the paragraph to software that crosses the border into the country in some way or another. The sentence also begins with "No Party..." where parties are the countries (represented by their governments). So this is about government regulation of software that somehow gets into the country some way or another. " shall require the transfer of, or access to, source code of software owned by a person of another Party" With all the preconditions above in mind, this actually means that no government can impose rules on somehow imported software that would require the seller in another country to provide the source code with the product. Effectively, this is only a restriction on lawmakers. Individual persons and companies are not directly affected this section of the treaty.
  - bluGill 8y ago
    I believe you are wrong. If the license doesn't apply as written, then nothing in copyright law gives you any rights. GNU has always argued that if you don't accept the GPL, then your use of the software is pirating it under copyright law. That is the same consequence as would happen if I sold a library for money, but instead of buying from me you copied it. If you want to be evil and have written any GPL you can sue everybody in the target country that uses your software. Since the GPL isn't legal in their country residents of that country have no legal right to use your code. Note that you need to write "mass market software" for this to apply. Of course I'm not a lawyer, consult a lawyer if you need legal advice.
shmerl 8y ago
Current language is surely messed up. If they meant it can't be required for software that's not already open - they should clarify that. And why such stupid provision be included to begin with? If someone wants to mandate FOSS as part of some import, it's their choice why should it be forbidden?
- tzs 8y ago
  What it is saying is that they can't close the market for mass-market software to foreign closed source software. It's not saying that all foreign software mass-market software must be closed to be sold in their market.
  - shmerl 8y ago
    Why should it be part of some restriction? Sounds like a sneaky way to get preferential restrictions. I.e. if they wanted to make it sound equal, they should have said "any software".
user5994461 8y ago
Copyleft was never valid internationally. It is unclear in some jurisdictions whether copyleft is possible and it was never tested in court.
- hinkley 8y ago
  In fact I've worked for two multinationals where we had to remove loosely-licensed software from our dependency chain and replace it with MIT licensed alternatives because the IP guys were fine with MIT but public domain or copyleft made them blanch. The first one was ten years back, and they acted like this has always been a problem.
  - otakucode 8y ago
    I know that there are several nations, Germany being the one I've read the most about, that do not support the notion of 'public domain' at all. It is simply impossible there to give up a copyright. You can extend rights to everybody, but you are still legally bound to any work you create for things like liability purposes. I've always been surprised that this isn't a bigger problem than it sounds. I'd be quite worried about putting code online if my countries legal system made me forever liable for its use regardless of what kinds of license I released it under.
    - germanier 8y ago
      It's hard to concieve a case were you could be liable for anything by simply putting up code online (except for cases where you don't have the rights, e.g. copyright, to do that in the first case or including a death threat in the code) but I hope there is no place that allows you to simply state "I am not liable" to absolve you of your wrongdoings. Usually you are not liable for what other people do with your code. The German case of nor allowing to give up all your rights has another intention: In the past creators were pressured to give up certain rights which was deemed unfair. To protect the weaker party in negotiations you can't sign away some rights, e.g. allowing defecament of your work, the right to not have someone else's named as an author, or remuneration for a novel not yet envisionable use of the work.
pasbesoin 8y ago
It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product. So, I expect all 11 of these countries to stop using all said software, forthwith and without exception.
- mrep 8y ago
  Funny, because that reminds me of GDPR. If you don't accept a sites business model, then I think you should be denied access from that product.
  - cosmojg 8y ago
    Funny? It's a reasonable sentiment.
    - mrep 8y ago
      I 100% agree that it is a reasonable sentiment. What I find funny is that I have seen lots of supporters here obout GDPRs right to content without supporting a websites business model of targeted advertising and now I am seeing a comment about how countries should follow a softwares copyleft laws or not be able to use it (the all or nothing approach that GDPR advocates seem to always complain about).
- isostatic 8y ago
  > It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product. Well I can ignore the GPL all I want and still use GPL software. There's nothing I can see in copyright law that prevents me from doing that. Microsoft and co conditioned people into thinking that they required permission to use software, but that's certainly not the case in software I use. However if I want to do something that I can't do in copyright law (like give someone else a copy), I require permission from the copyright holder. That permission is pre-emptively given in the GPL. If I don't like those terms, that's fine, I can contact the copyright holder and attempt to negotiate other terms.
throw2016 8y ago
No major country including the US is going to allow itself to be forced to buy software without source code if required. Infact government contracts and even large private contracts require source code or escrow for continuity. Anything defense or critical infrastructure related will require code. So both from a technical, legal and national interest standpoint this can't pass the smell test. Vendors can always choose not to do business. Some large country may still try to arm twist smaller countries and do backroom deals with allies but on the whole its unlikely to pass because no one will sign it.
slavik81 8y ago
> CPTPP is almost identical to the original TPP 11 of 20 articles were struck from the intellectual property chapter of the agreement, including the ones I found to be most concerning. It's a very different agreement for software.
shiado 8y ago
In article 14.17 what is the legal definition of "source code"? Are comments in code "source code"? There isn't really a precise definition of source code is there? I could run many sorts of IP through a compiler of my own design and get a runnable binary out of it. I propose that people write a compiler that takes a Disney film as input and outputs a binary that outputs "hello world!" on x86_64 Linux. Then we can call into question the legitimacy of the IP behind the Disney film because it is "source code".
tomohawk 8y ago
This is why treaties like this are so dangerous. A treaty really should be about matters of state, and the conduct between states. Instead, "treaties" like this are really a means of creating legislation outside of the elected legislatures that should be dealing with this. Ratifying these sorts of laws through a treaty process has the power to abrogate a state's constitutional, judicial, and legislative laws - disenfranchising the people. Its the consequence of "rule of lawyers" instead of "rule of law". Politicians engaging in these sorts of shenanigans really should not be welcome in polite company.
deleted 8y ago
[deleted]
gowld 8y ago
Nothing to see here. As commenters here and on the article note, the author is confusing governments who sign the CPTPP with persons/organizations who reside in those governments' territories.
deleted 8y ago
[deleted]

270 points by zeveb 8y ago

The relevant text from the linked pdf[1]: >Article 14.17: Source Code >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. >2. For the purposes of this Article, software subject to paragraph 1 is limited to mass-market software or products containing such software and does not include software used for critical infrastructure. >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; To point (1), the text seems like something Steve Ballmer would write to because "GPL is a cancer". To point (2), I wonder if "GNU gcc" is considered "mass-market" or "infrastructure". To point (3), I assume that proprietary software users will want the most narrow definition of "commercially negotiated contracts". This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract". Therefore, copyleft would be null & void. [1] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/official-documents/Documents/14-electronic-commerce.pdf http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/...

tux1968 8y ago
So these aren't accidental consequences of provisions meant to address some other issue. These are specifically designed to attack GPL and other copy-left licenses.
- Myrmornis 8y ago
  Who is behind this antipathy to copyleft? I wasn’t aware it was on the radar of the sorts of entities involved in writing international trade agreements.
- dragonwriter 8y ago
  They seem on the surface to be designed to attack “source code as a condition of import license” laws,
- zmmmmm 8y ago
  The original intent was inspired (I think) by countries like China demanding the source code to Windows as a condition of it use in their country. GPL is just collateral damage due to (a) politicians being almost completely ignorant about everything technological, and (b) the whole thing being negotiated in secret with no input. When you put (a) and (b) together, it seems like a miracle if the whole thing is not a disaster.
ISL 8y ago
At first glance, text like this may have been included to prevent countries from attempting to claw source code from closed-source software and cloud vendors. It would appear to be troublesome, at a minimum, for copyleft projects, too.
- sounds 8y ago
  How would a country claw source code from a vendor in another nation, if they did not sign this agreement? File a lawsuit? I suppose the most common method is to seize assets or personnel that are located in-country.
  - ISL 8y ago
    As the provision above states: "as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory." A country could state simply: If we can't audit your code, you can't import, distribute, sell, or use it in our country. See: United States vs. ZTE for a hardware example.
  - dragonwriter 8y ago
    > How would a country claw source code from a vendor in another nation, if they did not sign this agreement? By making it a condition of allowing imports of the product, which is why that's exactly what the provision prohibits.
    - EGreg 8y ago
      And why is that so bad? A nation should be allowed to enforce laws to know the source code of its software because otherwise backdoors could kick in at some point, and other nasty stuff.
      - ISL 8y ago
        Such a requirement has positives and negatives, which are dependent upon point of view. From the position of a free-trade agreement, it would be a statement of trust. We trust you enough to be our partner that we won't attempt to claw open your citizens' code if, in return, you don't do so to our citizens' code. Entering such an agreement might be unwise, should a counterparty turn out to be disreputable or irresponsible.
sounds 8y ago
The 11 countries who signed (many still need to ratify the treaty). Alphabetical order: 1. Australia 2. Brunei 3. Canada 4. Chile 5. Japan (already ratified) 6. Malaysia 7. Mexico (already ratified) 8. New Zealand 9. Peru 10. Singapore 11. Vietnam Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend.
- MisterTea 8y ago
  > Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend. In other words: Business as usual.
- lopmotr 8y ago
  I wish people would stop wanting to micromanage their governments. Some things, like negotiation, military planning, or crime investigation don't work when all their details are made public as they happen. Trade deals are never secret once they're completed so it's not a cover-up. You elect leaders who you believe will work in your interests and leave them to get the job done. If they do it wrong, you can unelect them or their whole party next time. This actually happened in America when people didn't like the TPP that Obama agreed to behind closed doors and they elected Trump who withdrew from it.
  - fjsolwmv 8y ago
    Why is it so important to have business input into treaties but not important to have consumer input? What if we want to hold government accountable?
    - openasocket 8y ago
      With all due respect to the average consumer (including myself), I don't think their input is particularly valuable. They want lower prices for goods and for people not to be laid off. I don't think the average consumer has much to offer on Vietnamese shrimp subsidies and their effect on the global supply chain. Getting input from businesses doesn't mean blindly following them, but they do have a lot of information to offer.
dragonwriter 8y ago
> This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract". It's possibly a contract, but it is clearly not “commercially negotiated”, it's a contract (if at all) of adhesion.
- incompatible 8y ago
  My understanding is that a license is not a contract, but simply permission from one party to do something. A license can be part of a contract e.g., when a license is provided in exchange for money. However, if I just plonk an open source license on a bit of software I wrote, there's no contract with anybody. It's unlikely that invalidating an open source license would be of benefit to a user, since they then have no legal right to make copies of the software.
kps 8y ago
I don't see how this has anything to do with license enforcement at all. It only means participating countries can't block the import of closed-source software.
bunderbunder 8y ago
I'd want to get an international law expert's take on this before getting too worried. Based on skimming the preamble, it looks to me like "Party" is capitalized to indicate that, within the context of this document, Party has a very specific meaning: One of the nation-states that has entered into this trade agreement. If that's a correct reading, then this might have some unintended consequences around government open source projects, but, since it isn't trying to place any restrictions on anyone who isn't a nation-state, it wouldn't be that much of a threat to copyleft in general. I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."
- jasode 8y ago
  >I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country." Your interpretation seems reasonable. I'm guessing OSIA and the Linux Journal are interpreting it like this: >No Party (e.g. GNU GCC) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. GCC), or of products containing such software (e.g. GCC), in its territory. The "such software" is misinterpreted as referring back to a hypothetical "GCC" instead of "Atlassian". Your interpretation would be more like: >No Party (e.g. USA) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. Atlassian), or of products containing such software (e.g. Atlassian), in its territory. With that interpretation, the text is a response against China and Russia demanding source code from USA and European tech companies. E.g. https://www.google.com/search?q=china+russia+import+share+source+code https://www.google.com/search?q=china+russia+import+share+so... If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.
kevin_b_er 8y ago
For what purpose were these items added? It looks like a direct attack on open source otherwise.
- Taniwha 8y ago
  it's to stop countries requiring companies from releasing their source code as a condition of use in their countries
scythe 8y ago
Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal. More generally, it would seem very out of form for a free-trade deal to include provisions that undermine the freedom of contracts. Contracts are an important part of capitalism, after all.
- tzs 8y ago
  > Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal You could just as validly say the same thing about pretty much all mass-market software. Replace "copyleft license" with "terms of service" or "end user license agreement". It's hard to think of any mass-market software that would not be covered under that interpretation, which is a strong hint that the interpretation cannot be right. What I believe (3a) is trying to cover cases where a Party (e.g., Australia) is acquiring software for its own use. For instance, suppose Australia wanted to use AgileBits' 1Password [1] on all the government's desktop computers. 1Password is mass-market software, and this treaty would prohibit Australia from requiring that AgileBits make the source available as a condition of selling to consumers in Australia. But if Australia negotiates a deal with AgileBits to supply Australia's government istself with 1Password, rather than the government simply buying it the same way consumers would, (3a) applies and the treaty does not apply. [1] Picked for this example because it is the only well-known mass market software that I could think of offhand that (1) a government might reasonably want to mass deploy internally, and (2) is owned by a company that is in a country (Canada) that will be a Party to this treaty.
kcolford 8y ago
This phrasing may be slightly deceptive, but in this instance the word "Party" specifically refers to the countries (and/or their respective government) signing this agreement. All in all, it only says that a government cannot demand the source code to a piece of software that is being exported from another country. Although, they can still force a software developer in their own country to give up the source code to a piece of software. It goes on to add some exceptions but is otherwise very inconsequential. I am not a lawyer, but this a paraphrasing of an explanation given to me by someone who is a copyright/securities lawyer in one of the member countries (Canada).
- coldacid 8y ago
  How does one specialize in both copyright _and_ securities law? I could understand copyright and real estate or securities and corporate law, but that seems to be a novel pairing.
pc86 8y ago
I don't think you need to take "the most narrow definition" of a contract to think that LICENSE.TXT doesn't qualify. Especially when you add the modifier "commercially negotiated" to it. I played no role in negotiating GPL.
mcguire 8y ago
I believe the FSF has argued that the GPL is not a contract in order to defend against specifically this problem. Without the GPL, the recipient has no license to redistribute the software. Presumably, that couldn't be enforced in the countries under the treaty, but they would have problems distributing things outside those countries.
kazinator 8y ago
Who the hell has ever been in a position to demand the source code to mass-market software as a condition of its use? "I demand the full, buildable source to MS Outlook before accepting this meeting request!" Still, does making this type of demand have to be made against the law?
- URSpider94 8y ago
  Countries with highly regulated economies dominated by state-run businesses will often make this a condition of winning a government contract. In the sense of, if you want to provide the OS and productivity suite to all of our government offices, you must hand over the source code for “inspection”. When the contract is re-bid in 10 years, you lose out to the new government-owned software company,
bdowling 8y ago
There's nothing to see here. "Party" (capitalized) and "person of a Party" have specific meanings in this document, as defined in the definitions section: "Party means any State or separate customs territory for which this Agreement is in force;" "person of a Party means a national or an enterprise of a Party;" (Chapter 1, Section A, Article 1.3, [0]) So the statement "No Party shall require the transfer of..." restricts what a State that signed the treaty may do to the persons and enterprises of another State. For example, China can't require Microsoft to disclose its source code as a condition to selling Windows in China. Regarding the other quote about contracts, the operative part is "Nothing in this Article shall preclude". So this treaty has no effect on terms regarding source code in commercially negotiated contracts. Even if you are of the misguided belief that FOSS licenses are contracts, this provision does not affect them. Finally, FOSS licenses are not contracts because they do not contain bargained-for reciprocal promises. They are grants of rights, subject to terms and conditions. A FOSS license operates as a defense against copyright infringement. If the terms and conditions are not met, then the license is void. The infringer can then be sued for copyright infringement, not breach of contract. This has two important implications: (1) a court won't order specific performance (a contract remedy) in a case of copyright infringement, and (2) a third party has no standing to sue, because where there is no contract there can't be a third-party beneficiary (only the rights-holder may sue). [0] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/official-documents/Documents/ch1-initial-provisions-and-general-definitions.pdf http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/... (Edit: Clarified lack of breach of contract claim.)
- slavik81 8y ago
  I don't think it really changes anything, but there have been cases where the GPL has been considered a contract. https://perens.com/2017/05/28/understanding-the-gpl-is-a-contract-court-case/ https://perens.com/2017/05/28/understanding-the-gpl-is-a-con...
  - bdowling 8y ago
    No. Even in that case, the GPL wasn’t considered a contract. There was an open offer to anyone, essentially, “If you’d like to use this software, either buy a commercial license or abide by the terms of the GPL.” The defendant accepted the offer by using the software and proclaiming that it would meet the terms of the GPL. That offer and acceptance created a contract. So, the GPL wasn’t the contract itself, but provided the terms for the offeree’s performance.
smsm42 8y ago
It says "no Party" - does it mean this only binds the signatories of the treaty - which probably are countries and not individual developers? And if so, I would read it as "we promise there will be no state law to mandate all software in the country be open-source" which seems to be reasonable (even though I never heard about any country trying to pass such a law anyway) not "open source licenses are un-enforceable". Also, it says "owned by person of another Party", so it's mostly even "we promise no import/export bans on non-open-source software", and the intra-governmental actions are not even discussed, only cross-governmental ones. Also (3) says if the government negotiates contracts, it still can require the software to be open-source, it just can't have blanket ban on non-open-source software imports altogether. Am I misreading it or misunderstanding what "Party" means?

jedberg 8y ago

That flowchart looks scary, but I'm missing the part that gets me from A to B. Why are those the outcomes?

lemoncucumber 8y ago

If that part of the GPL is invalid, wouldn't that leave anyone who wanted to distribute GPL-licensed software without a valid license to do so? It seems crazy that it would leave intact the right to distribute given that as it's written that is contingent upon providing the source.

gmueckl 8y ago
[Please see edit below] My cursory understanding is that the GPL becomes more like the BSD or MIT license in that it becomes lawful to distribute altered binaries without the corresponding altered source code. However, legal texts are tricky and the correct interpretation of this one my well be different from my current understanding. Edit: ----- After rereading parargraph 1 another three times, I think that the wording of the text suggests a far broader scope than it actually covers. "...as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory." This part of the sentence limits the application of the rest of the paragraph to software that crosses the border into the country in some way or another. The sentence also begins with "No Party..." where parties are the countries (represented by their governments). So this is about government regulation of software that somehow gets into the country some way or another. " shall require the transfer of, or access to, source code of software owned by a person of another Party" With all the preconditions above in mind, this actually means that no government can impose rules on somehow imported software that would require the seller in another country to provide the source code with the product. Effectively, this is only a restriction on lawmakers. Individual persons and companies are not directly affected this section of the treaty.
- bluGill 8y ago
  I believe you are wrong. If the license doesn't apply as written, then nothing in copyright law gives you any rights. GNU has always argued that if you don't accept the GPL, then your use of the software is pirating it under copyright law. That is the same consequence as would happen if I sold a library for money, but instead of buying from me you copied it. If you want to be evil and have written any GPL you can sue everybody in the target country that uses your software. Since the GPL isn't legal in their country residents of that country have no legal right to use your code. Note that you need to write "mass market software" for this to apply. Of course I'm not a lawyer, consult a lawyer if you need legal advice.

shmerl 8y ago

Current language is surely messed up. If they meant it can't be required for software that's not already open - they should clarify that. And why such stupid provision be included to begin with? If someone wants to mandate FOSS as part of some import, it's their choice why should it be forbidden?

tzs 8y ago
What it is saying is that they can't close the market for mass-market software to foreign closed source software. It's not saying that all foreign software mass-market software must be closed to be sold in their market.
- shmerl 8y ago
  Why should it be part of some restriction? Sounds like a sneaky way to get preferential restrictions. I.e. if they wanted to make it sound equal, they should have said "any software".

user5994461 8y ago

Copyleft was never valid internationally. It is unclear in some jurisdictions whether copyleft is possible and it was never tested in court.

hinkley 8y ago
In fact I've worked for two multinationals where we had to remove loosely-licensed software from our dependency chain and replace it with MIT licensed alternatives because the IP guys were fine with MIT but public domain or copyleft made them blanch. The first one was ten years back, and they acted like this has always been a problem.
- otakucode 8y ago
  I know that there are several nations, Germany being the one I've read the most about, that do not support the notion of 'public domain' at all. It is simply impossible there to give up a copyright. You can extend rights to everybody, but you are still legally bound to any work you create for things like liability purposes. I've always been surprised that this isn't a bigger problem than it sounds. I'd be quite worried about putting code online if my countries legal system made me forever liable for its use regardless of what kinds of license I released it under.
  - germanier 8y ago
    It's hard to concieve a case were you could be liable for anything by simply putting up code online (except for cases where you don't have the rights, e.g. copyright, to do that in the first case or including a death threat in the code) but I hope there is no place that allows you to simply state "I am not liable" to absolve you of your wrongdoings. Usually you are not liable for what other people do with your code. The German case of nor allowing to give up all your rights has another intention: In the past creators were pressured to give up certain rights which was deemed unfair. To protect the weaker party in negotiations you can't sign away some rights, e.g. allowing defecament of your work, the right to not have someone else's named as an author, or remuneration for a novel not yet envisionable use of the work.

pasbesoin 8y ago

It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product. So, I expect all 11 of these countries to stop using all said software, forthwith and without exception.

mrep 8y ago
Funny, because that reminds me of GDPR. If you don't accept a sites business model, then I think you should be denied access from that product.
- cosmojg 8y ago
  Funny? It's a reasonable sentiment.
  - mrep 8y ago
    I 100% agree that it is a reasonable sentiment. What I find funny is that I have seen lots of supporters here obout GDPRs right to content without supporting a websites business model of targeted advertising and now I am seeing a comment about how countries should follow a softwares copyleft laws or not be able to use it (the all or nothing approach that GDPR advocates seem to always complain about).
isostatic 8y ago
> It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product. Well I can ignore the GPL all I want and still use GPL software. There's nothing I can see in copyright law that prevents me from doing that. Microsoft and co conditioned people into thinking that they required permission to use software, but that's certainly not the case in software I use. However if I want to do something that I can't do in copyright law (like give someone else a copy), I require permission from the copyright holder. That permission is pre-emptively given in the GPL. If I don't like those terms, that's fine, I can contact the copyright holder and attempt to negotiate other terms.

throw2016 8y ago

No major country including the US is going to allow itself to be forced to buy software without source code if required. Infact government contracts and even large private contracts require source code or escrow for continuity. Anything defense or critical infrastructure related will require code. So both from a technical, legal and national interest standpoint this can't pass the smell test. Vendors can always choose not to do business. Some large country may still try to arm twist smaller countries and do backroom deals with allies but on the whole its unlikely to pass because no one will sign it.

slavik81 8y ago

> CPTPP is almost identical to the original TPP 11 of 20 articles were struck from the intellectual property chapter of the agreement, including the ones I found to be most concerning. It's a very different agreement for software.

shiado 8y ago

In article 14.17 what is the legal definition of "source code"? Are comments in code "source code"? There isn't really a precise definition of source code is there? I could run many sorts of IP through a compiler of my own design and get a runnable binary out of it. I propose that people write a compiler that takes a Disney film as input and outputs a binary that outputs "hello world!" on x86_64 Linux. Then we can call into question the legitimacy of the IP behind the Disney film because it is "source code".

tomohawk 8y ago

This is why treaties like this are so dangerous. A treaty really should be about matters of state, and the conduct between states. Instead, "treaties" like this are really a means of creating legislation outside of the elected legislatures that should be dealing with this. Ratifying these sorts of laws through a treaty process has the power to abrogate a state's constitutional, judicial, and legislative laws - disenfranchising the people. Its the consequence of "rule of lawyers" instead of "rule of law". Politicians engaging in these sorts of shenanigans really should not be welcome in polite company.

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gowld 8y ago

Nothing to see here. As commenters here and on the article note, the author is confusing governments who sign the CPTPP with persons/organizations who reside in those governments' territories.

deleted 8y ago

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