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>Article 14.17: 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.

Does this make GPL unenforceable, or am I reading too much into this?

INAL but I think it has more to do with deals like where China requires the source code of certain products before they're allowed to be imported or used by the Chinese government.

It doesn't read like it would prevent an individual from applying the GPL to their software but it might prevent the government from doing the same... Which would be exceptionally strange and problematic.

It could mean that government agencies would be prohibited from contributing to GPL-styled open source software or even using said software since they would be required to distribute it to anyone that asks for the code.

I think you missed a piece of the article: "by a person of another Party".

So for example the Japanese government cannot force a US company to release source code as a condition to allow its use/import/sell in Japan. But the Japanese government can write/finance as much GPL software as it wants, and can import as much GPL software as it wants. The Japanese government can even mandate all software for its own procurements to be GPL-only.

What Japan cannot do is outlaw the sell or use of closed source foreign (by a person of another Party) software on its territory. So say if Ford wants to sell cars in Japan, the Japanese government cannot force them to release the source code for a mandatory code-audit as a condition for import...

I really don't think it's a good article.

(IANAL, of course)

> So say if Ford wants to sell cars in Japan, the Japanese government cannot force them to release the source code for a mandatory code-audit as a condition for import

It has a bunch of vague hooey about the clause being limited to "mass market software" which I think is designed to deal with that. Of course, it's pathetically poorly defined (if a car is sold to a "mass market" then it's software is too, right?). To me this clause was pretty much written by Microsoft and of course, the negotiators at the TPP table are far to clueless to understand any of the subtlety involved in software licensing and distribution.

It seems that this particular article is more about creating equal conditions for domestic vs foreign producers – see "as a condition of import". Japan can still require ALL cars sold in Japan to release their source code. They just can't single out foreign made cars for this. (IANAL)

I would think it is more to prevent the theft of sensible source-code (cg drivers, etc.) that would "magically" end up on the desk of local competitors...

Imagine that Google launches a self driving car in Japan, but the Japanese government ask access to its source code... How many hours before Toyota gets it and start "auditing" it?

> How many hours before Toyota gets it and start "auditing" it?

Why would that be a problem? Sounds perfectly reasonable to me as long as everyone has the right to audit the code. There's a huge public interest in disclosure of source code for things like self-driving cars.

If Toyota, Mitsubishi, and other Japanese companies were given the code but no one else then there would be a problem.

I don't think that last interpretation would be valid; this specifically says it prohibits territorial requirements. ie if you required that all software imported to your country be GPL, that would fall under this section.

It's not intended to, but it seems to me like a worst case interpretation could cast some doubt about the scenario where a government agency (perhaps a university) contributes to GPL software. Now when another TPP member wants to distribute that software, the government of the first country is exactly "requiring" transfer / access to the source code as a condition of distribution by the second TPP member.

The big problem is the use of "require", because it's a very loose general term. It doesn't matter what basis the "requirement" comes, so even just ordinary old copyright law seems to come into scope there.

I don't think it's a real problem but I do think it is close enough to one that it's a horrible thing to have in the agreement.

EDIT: further to those thoughts, the result would not be that the GPL is unenforceable, rather, the result would be that people would lose the right to distribute GPL software in the country. A working GPL is the only thing that gives them the right to do that in the first place. I doubt there is any nation left on earth that can actually now operate without access to GPL software, this is unlikely to play out even if there is a way to interpret it that seems to violate the GPL.

Can you still be convicted on evidence coming from an imported, computer-controlled device, if a treaty prevents your examining it?


Probably not. But I do see it as preventing a government from requiring a code audit. And we've seen how well black-box software has worked in voting machines.

That's also how I understand this article, and it is scary: many industries (car manufacturers, for example) should have mandatory code audits.

You can still sell a black box voting machine, but that doesn't mean that the government has to buy it.

Another question: would this also have the effect of banning "open source only" policies for government procurement?

IANAL, but I don't think so.

Governments are not territories: "No Party shall require [...] access to source code [...] as a condition for the import [...] in its territory.". Because a given closed-source software cannot be bought in a specific procurement doesn't mean that it cannot be sold/used in the territory, so the text doesn't apply.

Um... the question would be what the definition of "Party" is in the agreement. If a Party is a signatory country, than it wouldn't affect the GPL. If a "Party" is just "anyone", then it might?

Party = country here.

so it might make it impossible for a court (a govt entity) from enforcing the GPL

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