3 ms·

>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 an

by 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...

slavik81 8y ago
> "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".) It's the same definition. "A person of another Party" is "a person from another country."
- deleted 8y ago
  [deleted]
- caf 8y ago
  And note that because it says 'person' and not 'natural person', it includes corporations. ie. "Boeing" is the person and "USA" is the Party.
jcranmer 8y ago
The text forbids parties (i.e., countries) from requiring source code disclosure as a condition of sale. It does not forbid persons (e.g., GNU) from requiring source code disclosure as a condition of sale. (It should be noted that it also doesn't forbid countries from tendering a contract proposal that requires source code disclosure in the contract). I'm going a bit of a limb here in applying SCOTUS principles to how to read law, as we're not talking about US jurisdiction, but since Australia is also a common law country, I'd assume that the principles are basically the same. One basic principle of determining different interpretations is that you have to ask "is there a clearer way to write this interpretation?" If the intent of the treaty were to make copyleft unenforceable, the text included would be along the lines of "No party shall permit a person to require the disclosure of source code." Indeed, if you read some of the other articles in that chapter, there is actually text that says "No party shall require a covered person..." This does signal that there is intent that the text of Article 14.17 apply onto the government and not to the general public within a country.
- jasode 8y ago
  > If the intent of the treaty were to make copyleft unenforceable, I think the consensus is that is not the intent. The OSIA and Linux Journal concern is the unintended alternative interpretation of the text.
  - jcranmer 8y ago
    I explained how SCOTUS would explain what the text means under the guideline of legislative intent (you'd probably arrive at the same conclusion under the principle of plain meaning). Legislative intent is explicitly trying to understand what a law means by understanding what the legislature intended it to mean, so whatever funky definition the OSIA and Linux Journal comes up is completely and totally irrelevant under that standard. I don't know the jurisprudence of Australian law to understand how Australian courts would interpret the text, but I would honestly be surprised if OSIA's purported interpretation were accepted.
smsm42 8y ago
> Text is "a person of another Party" That just means "foreigner". > Although "party" is literally defined as "country", it applies to the businesses in within a country. What "it"? The NAFTA could certainly have requirements from signatory states to implement certain laws, and when such laws are implemented, of course they would apply to Boeing or any other US company. But I don't think NAFTA itself would apply directly.

by jasode 8y ago

slavik81 8y ago

> "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".) It's the same definition. "A person of another Party" is "a person from another country."

deleted 8y ago
[deleted]
caf 8y ago
And note that because it says 'person' and not 'natural person', it includes corporations. ie. "Boeing" is the person and "USA" is the Party.

jcranmer 8y ago

The text forbids parties (i.e., countries) from requiring source code disclosure as a condition of sale. It does not forbid persons (e.g., GNU) from requiring source code disclosure as a condition of sale. (It should be noted that it also doesn't forbid countries from tendering a contract proposal that requires source code disclosure in the contract). I'm going a bit of a limb here in applying SCOTUS principles to how to read law, as we're not talking about US jurisdiction, but since Australia is also a common law country, I'd assume that the principles are basically the same. One basic principle of determining different interpretations is that you have to ask "is there a clearer way to write this interpretation?" If the intent of the treaty were to make copyleft unenforceable, the text included would be along the lines of "No party shall permit a person to require the disclosure of source code." Indeed, if you read some of the other articles in that chapter, there is actually text that says "No party shall require a covered person..." This does signal that there is intent that the text of Article 14.17 apply onto the government and not to the general public within a country.

jasode 8y ago
> If the intent of the treaty were to make copyleft unenforceable, I think the consensus is that is not the intent. The OSIA and Linux Journal concern is the unintended alternative interpretation of the text.
- jcranmer 8y ago
  I explained how SCOTUS would explain what the text means under the guideline of legislative intent (you'd probably arrive at the same conclusion under the principle of plain meaning). Legislative intent is explicitly trying to understand what a law means by understanding what the legislature intended it to mean, so whatever funky definition the OSIA and Linux Journal comes up is completely and totally irrelevant under that standard. I don't know the jurisprudence of Australian law to understand how Australian courts would interpret the text, but I would honestly be surprised if OSIA's purported interpretation were accepted.

smsm42 8y ago

> Text is "a person of another Party" That just means "foreigner". > Although "party" is literally defined as "country", it applies to the businesses in within a country. What "it"? The NAFTA could certainly have requirements from signatory states to implement certain laws, and when such laws are implemented, of course they would apply to Boeing or any other US company. But I don't think NAFTA itself would apply directly.