
Copyleft terms may become unenforceable in 11 countries due to the CPTPP - zeveb
https://www.linuxjournal.com/content/copyleft-terms-may-become-unenforceable-11-countries-under-cptpp
======
jasode
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/...](http://dfat.gov.au/trade/agreements/not-yet-in-
force/tpp-11/official-documents/Documents/14-electronic-commerce.pdf)

~~~
bunderbunder
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
_> 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+so...](https://www.google.com/search?q=china+russia+import+share+source+code)

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.

~~~
jcranmer
> 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
_> 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%2...](https://www.italaw.com/sites/default/files/laws/italaw6187%286%29.pdf)

~~~
slavik81
> "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."

~~~
caf
And note that because it says 'person' and not 'natural person', it includes
corporations.

ie. "Boeing" is the person and "USA" is the Party.

------
slavik81
> 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.

------
lemoncucumber
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
[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
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.

~~~
gmueckl
Wait, what...? I don't understand how you draw this conclusion from my post.

------
gowld
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.

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

------
throw2016
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.

------
shiado
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".

------
shmerl
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
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
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".

------
tomohawk
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.

------
user5994461
Copyleft was never valid internationally. It is unclear in some jurisdictions
whether copyleft is possible and it was never tested in court.

~~~
hinkley
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
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
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
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
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
Funny? It's a reasonable sentiment.

~~~
mrep
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).

