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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 capitaliz

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.
- deleted 8y ago
  [deleted]
- atheriel 8y ago
  My understanding (granted, second-hand from international copyright law experts) is that this is the correct interpretation: Microsoft does not want Chinese or Russian governments demanding the source code of Windows. I'm extremely skeptical of the Linux Journal's claims here. As per usual in international trade agreements, this provision merely codifies the present status quo. There's no reason to expect that it will affect the GPL.
- jcranmer 8y ago
  > 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. How is it ambiguous? The treaty contains a definition of "Party": > Party means any State or separate customs territory for which this Agreement is in force; To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state or a customs territory that signed the treaty.
  - jasode 8y ago
    >How is it ambiguous? The treaty contains a definition of "Party" I'm guessing it's because "commercially negotiated contract" in subsection 3a seems to use another (inferred) meaning of "party" such as a commercial business and not a country. (Text is "a person of another Party".) So one side of that "contract" is not a country. (E.g. Microsoft Windows is not the USA.) >To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state Since CPTPP is a trade agreement, maybe an analogy is the NAFTA trade agreement[1]. Even though Boeing is not a signatory on the treaty, the USA signed it so Boeing is prohibited from certain practices with Canada and Mexico. Although "party" is literally defined as "country", it applies to the businesses in within a country. [1] https://www.italaw.com/sites/default/files/laws/italaw6187%286%29.pdf https://www.italaw.com/sites/default/files/laws/italaw6187%2...
gregknicholson 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." This is terrifying. Foreign-made self-driving cars can deliberately kill people via software algorithms, and even the government can't insist on seeing the source code to find out whether the car maker is incompetent or malicious.
- bunderbunder 8y ago
  I see nothing to suggest that this provision would prohibit a subpoena.
- kentm 8y ago
  There’s a difference between requiring source code as a precondition for selling and stopping sales of a product on documented safety concerns and requiring participation in an investigation to resume sales. It’s down to whether the law is correctly written to distinguish the two.
  - yellowapple 8y ago
    Personally, I'd much prefer proactive auditing (i.e. requiring source code) over waiting until someone is injured and possibly killed to launch an investigation. Transparency is a dependency of trust. There's no going around that. If a product is not transparent, then it is not trustworthy, period. I'm not at all inclined to wait for something to violate my trust further before demanding a prerequisite for that trust. Governments shouldn't be so inclined, either, especially when it comes to human safety.
    - adrianN 8y ago
      I'd also like that, but even today there is lots of software that can kill people if it contains bugs. It is usually enough that the makers can prove that they followed some process like EN50128. Source code is not required. I don't think there are competent people available for auditing source code.
dragonwriter 8y ago
> If that's a correct reading, then this might have some unintended consequences around government open source projects Restrictions on states in treaties also restrict their judiciary and their executive in enforcing judicial acts, not just acts taken in running the government administration. So, if the terms conflicted with what the state must do to give effect to enforcemrnt of open source licenses, it would make them unenforceable even if it doesn't prohibit private parties from offering and accepting them.
- jcranmer 8y ago
  The third clause explicitly states "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;" That is to say, the article is explicitly not prohibiting countries from enforcing copyleft licenses.
  - dragonwriter 8y ago
    Most copyleft licenses are not, in the manner normally entered into, “commercially negotiated contracts”, and many are gratuitous licenses, not contracts at all.
    - jcranmer 8y ago
      Licenses are contracts, legally speaking.
      - dragonwriter 8y ago
        No, they aren't. Licenses are legal permission, which may either be unilateral and gratuitous with no exchange, or mutual as a (part of a) contract.
nerdponx 8y ago
Does anyone have a link to a chapter where they define that term?
- rory096 8y ago
  >Party means any State or separate customs territory for which this Agreement is in force; https://www.mfat.govt.nz/assets/Trans-Pacific-Partnership/Text/1.-Initial-Provisions-and-General-Definitions-Chapter.pdf https://www.mfat.govt.nz/assets/Trans-Pacific-Partnership/Te...

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.

deleted 8y ago
[deleted]
atheriel 8y ago
My understanding (granted, second-hand from international copyright law experts) is that this is the correct interpretation: Microsoft does not want Chinese or Russian governments demanding the source code of Windows. I'm extremely skeptical of the Linux Journal's claims here. As per usual in international trade agreements, this provision merely codifies the present status quo. There's no reason to expect that it will affect the GPL.
jcranmer 8y ago
> 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. How is it ambiguous? The treaty contains a definition of "Party": > Party means any State or separate customs territory for which this Agreement is in force; To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state or a customs territory that signed the treaty.
- jasode 8y ago
  >How is it ambiguous? The treaty contains a definition of "Party" I'm guessing it's because "commercially negotiated contract" in subsection 3a seems to use another (inferred) meaning of "party" such as a commercial business and not a country. (Text is "a person of another Party".) So one side of that "contract" is not a country. (E.g. Microsoft Windows is not the USA.) >To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state Since CPTPP is a trade agreement, maybe an analogy is the NAFTA trade agreement[1]. Even though Boeing is not a signatory on the treaty, the USA signed it so Boeing is prohibited from certain practices with Canada and Mexico. Although "party" is literally defined as "country", it applies to the businesses in within a country. [1] https://www.italaw.com/sites/default/files/laws/italaw6187%286%29.pdf https://www.italaw.com/sites/default/files/laws/italaw6187%2...

gregknicholson 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." This is terrifying. Foreign-made self-driving cars can deliberately kill people via software algorithms, and even the government can't insist on seeing the source code to find out whether the car maker is incompetent or malicious.

bunderbunder 8y ago
I see nothing to suggest that this provision would prohibit a subpoena.
kentm 8y ago
There’s a difference between requiring source code as a precondition for selling and stopping sales of a product on documented safety concerns and requiring participation in an investigation to resume sales. It’s down to whether the law is correctly written to distinguish the two.
- yellowapple 8y ago
  Personally, I'd much prefer proactive auditing (i.e. requiring source code) over waiting until someone is injured and possibly killed to launch an investigation. Transparency is a dependency of trust. There's no going around that. If a product is not transparent, then it is not trustworthy, period. I'm not at all inclined to wait for something to violate my trust further before demanding a prerequisite for that trust. Governments shouldn't be so inclined, either, especially when it comes to human safety.
  - adrianN 8y ago
    I'd also like that, but even today there is lots of software that can kill people if it contains bugs. It is usually enough that the makers can prove that they followed some process like EN50128. Source code is not required. I don't think there are competent people available for auditing source code.

dragonwriter 8y ago

> If that's a correct reading, then this might have some unintended consequences around government open source projects Restrictions on states in treaties also restrict their judiciary and their executive in enforcing judicial acts, not just acts taken in running the government administration. So, if the terms conflicted with what the state must do to give effect to enforcemrnt of open source licenses, it would make them unenforceable even if it doesn't prohibit private parties from offering and accepting them.

jcranmer 8y ago
The third clause explicitly states "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;" That is to say, the article is explicitly not prohibiting countries from enforcing copyleft licenses.
- dragonwriter 8y ago
  Most copyleft licenses are not, in the manner normally entered into, “commercially negotiated contracts”, and many are gratuitous licenses, not contracts at all.
  - jcranmer 8y ago
    Licenses are contracts, legally speaking.
    - dragonwriter 8y ago
      No, they aren't. Licenses are legal permission, which may either be unilateral and gratuitous with no exchange, or mutual as a (part of a) contract.

nerdponx 8y ago

Does anyone have a link to a chapter where they define that term?

rory096 8y ago
>Party means any State or separate customs territory for which this Agreement is in force; https://www.mfat.govt.nz/assets/Trans-Pacific-Partnership/Text/1.-Initial-Provisions-and-General-Definitions-Chapter.pdf https://www.mfat.govt.nz/assets/Trans-Pacific-Partnership/Te...