
TPP banning requirements to transfer or access to source code of software - SomeoneWeird
http://keionline.org/node/2363
======
dak1
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.

~~~
DannyBee
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?)

~~~
andrewmutz
Why would the GPL not be considered a commercially negotiated contract?

~~~
_rpd
If the TPP is ratified, would it be worth updating the GPL to say "You agree
that this is a commercially negotiated contract"?

~~~
tzs
The FSF says that GPL is not a contract [1] [2] [3].

[1]
[http://www.gnu.org/licenses/200104_seminar.html](http://www.gnu.org/licenses/200104_seminar.html)

[2] [http://www.gnu.org/philosophy/enforcing-
gpl.html](http://www.gnu.org/philosophy/enforcing-gpl.html)

[3] [https://www.fsf.org/news/wallace-vs-
fsf](https://www.fsf.org/news/wallace-vs-fsf)

------
saurik
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.

~~~
chronial
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
>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.

~~~
Rusky
One big difference is that you're distributing the binaries (or devices
containing them) anyway, which makes them reverse-engineerable.

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forgotpwtomain
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) ?

~~~
crdoconnor
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.

~~~
justsee
I don't think you've read the investment chapter [1].

It isn't a 'secret court':

* 9.23.1 Documents from the complainant are submitted and they should "make them available to the public"

* 9.23.2 "The tribunal shall conduct hearings open to the public"

Of course there is a section (9.23.4) detailing that complainants can withold
any 'protected information' so perhaps in practice the process will not be as
transparent as proponents would have us believe.

There is nothing about 'damages equal to their lost profits':

* Awards (9.28.4) "the only damages that may be awarded are those that the claimant has proven were sustained in the attempt to make the investment, provided that the claimant also proves that the breach was the proximate cause of those damages. If the tribunal determines such claims to be frivolous, the tribunal may award to the respondent reasonable costs and attorney's fees"

I think there is much that's disagreeable about the TPP but detractors relying
on falsehoods opens TPP opposition up to easy attacks relying on the
fallacist's fallacy.

[1] [http://www.mfat.govt.nz/downloads/trade-
agreement/transpacif...](http://www.mfat.govt.nz/downloads/trade-
agreement/transpacific/TPP-text/9.%20Investment%20Chapter.pdf)

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randallsquared
"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
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.

------
riskable
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)

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

~~~
cJ0th
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.

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

~~~
PMan74
Why would you want VW to make available its source code?

~~~
lucozade
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.

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franzpeterstein
[https://web.archive.org/web/20151106020038/http://www.keionl...](https://web.archive.org/web/20151106020038/http://www.keionline.org/node/2363)

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kazinator
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.

------
fastmark
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
Those who use those machines have standing to ask for the source code, as per
the GPL.

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

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sitkack
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.

------
kristopolous
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.

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

~~~
rdancer
Are you the fine article's author?

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hackuser
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.

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

------
scotty79
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.

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

~~~
RIMR
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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xmly
TPP is no double political union instead of economical partners.

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PostThisTooFast
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
Too bad this isn't actually done for voting machines and ECUs.

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yourepowerless
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?

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dataker
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
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.

