TPP banning requirements to transfer or access to source code of software • Hacker News Board

Re: TPP banning requirements to transfer or access to source code of software

#131

Post by 15155 » Fri, Nov 06, 2015, 10:41 PM UTC

structural wrote: post #117

15155 wrote: post #32

Earlier quoted context omitted.

Expounding further - what government agency has the time or money to actually sift through mountains of source code? From a pure financial standpoint, there's no possible way that it isn't cheaper to just measure real emissions than attempt some kind of software analysis for every version of every vehicle on the market. Furthermore, an agency inspecting source code has absolutely no way to tell whether or not that th…

In a similar vein, what government agency has the time or money to actually review every single diagram for a building to be constructed? It's actually the same problem: an extremely complex object is being constructed, a critical failure within which could leave many people nearby injured or dead. The solution is actually somewhat ingenious: License a small group of people to go analyze such things, let them organiz…

> Perhaps it's time that software grew up and became something closer to a real engineering discipline?

Filled with red tape, inaccessibility, limitations?

No thanks. I think we've done a very decent job of self-regulation, licensure and review have fared well for most* life-threatening software systems.

Re: TPP banning requirements to transfer or access to source code of software

#132

Post by 15155 » Fri, Nov 06, 2015, 10:43 PM UTC

granos wrote: post #50

15155 wrote: post #32

Earlier quoted context omitted.

Expounding further - what government agency has the time or money to actually sift through mountains of source code? From a pure financial standpoint, there's no possible way that it isn't cheaper to just measure real emissions than attempt some kind of software analysis for every version of every vehicle on the market. Furthermore, an agency inspecting source code has absolutely no way to tell whether or not that th…

If you have source code then you can tell whether a particular executable was built from said source code. Pull the executable out of the car and also build the source code yourself as instructed by the manufacturer, compare the two binaries. If the binaries don't match, then whatever certification the device needs automatically fails and it cannot be sold. What that means is that later on, if "Something Bad" happens…

To me, this seems like a relatively difficult feat.

- Are governments and other regulatory agents going to formally verify compilers?

- Are these agencies going to prevent software from being written that doesn't conform to their rigid standards?

- Many compilers, technologies in use today aren't perfectly deterministic. Optimizations, flags, etc. can all dramatically affect an emitted binary.

- What if I want to use a completely different architecture than a regulatory agency is used to? Am I just not allowed to?

And as you mentioned, updates.

With the ability to do OTA or any other updates, software becomes almost impossible to identify or deal with.

Re: TPP banning requirements to transfer or access to source code of software

#133

Post by belorn » Fri, Nov 06, 2015, 10:44 PM UTC

DannyBee wrote: post #96

mikekchar wrote: post #91

Earlier quoted context omitted.

I am not a lawyer and I'm trying to wrap my head around this. For me the main issue (with respect to the GPL) is that the GPL does not compel you to distribute source code. It is simply a condition of the the granting of the license. The GPL is quite specific about it. It states that you do not have to accept the license. However, if you do not accept the license, there is nothing that will allow you to distribute th…

"You can't distribute it anywhere (under international copyright law)." True. There are two problems. First, this violation is remedied by an action. Normally, that action for an order to comply with the license (not just "stop using it and pay damages"). There is a question whether a court would legally be able to order such a thing anymore. B. As you have identified, "Is that not what is meant by a commercially neg…

Is there any prior case where an court demanded that a party comply with a copyright license? "stop using it or comply with the license" seems to be the obvious step for any infringer.

Re: TPP banning requirements to transfer or access to source code of software

#134

Post by pawelk » Fri, Nov 06, 2015, 10:59 PM UTC

riskable wrote: post #109

andrewmutz wrote: post #51

Earlier quoted context omitted.

Just to agree with this point and elaborate: when the text uses the word "party" it refers to a nation signing the treaty, and not people. So when it says "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," Party refers to…

In a State where the GPL is enforceable would it be a violation of the TPP to require that a foreign company comply with the GPL and release the source code? I think that's the $1,000,000 question.

As I understand it: a government can not say to a foreign company "we won't buy your software / won't allow your product in our market unless you give us the source code" and that's it. It has nothing to do with GPL, possibly with the exception that writing "the provided software shall be released under GPL license" into government-sponsored bids would be illegal as it basically forces a company to provide the source code as a requirement to do business.

Re: TPP banning requirements to transfer or access to source code of software

#135

Post by [deleted] » Fri, Nov 06, 2015, 11:19 PM UTC

zkhalique wrote: post #92

mikekchar wrote: post #91

Earlier quoted context omitted.

I am not a lawyer and I'm trying to wrap my head around this. For me the main issue (with respect to the GPL) is that the GPL does not compel you to distribute source code. It is simply a condition of the the granting of the license. The GPL is quite specific about it. It states that you do not have to accept the license. However, if you do not accept the license, there is nothing that will allow you to distribute th…

I happen to agree with your analysis, but I am not a lawyer either. What does it matter that a state cannot compel a corporation to reveal its source code as a condition of distribution? The key is that the recipient of the distribution cannot make use of it without a license, pursuant to international copyright law and treaties. And you can indeed sue them for infringing on this, under copyright law, can you not? As…

[deleted]

Re: TPP banning requirements to transfer or access to source code of software

#136

Post by fineman » Fri, Nov 06, 2015, 11:27 PM UTC

DannyBee wrote: post #56

dak1 wrote: post #4

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 th…

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 behi…

Wouldn't the authors of the software be able to sue if the licensee didn't fulfill their obligations? And wouldn't one of the civil remedies sought be to ban importation if the offending product into the country in question?

From my (not a lawyer) reading, it seems to suggest that the government can't forbid the sale of closed-source software.

Also, you don't need a license to use software, which is why the GPL is irrelevant to end users. But I can't see how someone choosing the use GPLed software is doing anything different than downloading the Torque 3d engine, etc. It's freely accessible, but you have to agree to some conditions to legally do certain things with it.

Re: TPP banning requirements to transfer or access to source code of software

#137

Post by fineman » Fri, Nov 06, 2015, 11:30 PM UTC

DannyBee wrote: post #97

vonmoltke wrote: post #82

Earlier quoted context omitted.

I believe this because the overly-broad interpretation you are taking is ludicrous. It would prevent code owners from asking other countries to take enforcement actions for them, regardless of what license the code was under, if they suspect someone in another party nation misappropriated their code. It would essentially mean software authors could not enforce their copyright against infringers in other party nations…

"I believe this because the overly-broad interpretation you are taking is ludicrous." Of which part. I think the part about whether you can compel an owner is cut and dry. It says nothing about compelling owners. Period. The part about countries being able to make laws about import/export, also very cut and dry. This is very clearly covered. The part about countries not being able to have courts order source access,…

It doesn't seem to prevent other reasons for compelling source access. Simply not *as a condition ... sale in the territory".

So you can't (seemingly) require FOSS to access the market at all, but you could compel someone to reveal source for any number of other reasons.

Re: TPP banning requirements to transfer or access to source code of software

#138

Post by fineman » Fri, Nov 06, 2015, 11:36 PM UTC

briandear wrote: post #125

andrewmutz wrote: post #84

Earlier quoted context omitted.

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

It's a Contract of Adhesion. Adhesion contracts are, by definition not negotiated.

Not all non-negotiable contacts are a a contract of adhesion. Stores will rarely negotiate (in N.A.), for example.

CoAs require a weaker party, who has no leverage, and it seemingly need to be for a necessity (as part of the "no choice but to agree").

The GPL is an offer, but in no way precludes authors from accepting other terms for use of their work.

Re: TPP banning requirements to transfer or access to source code of software

#139

Post by iwwr » Fri, Nov 06, 2015, 11:44 PM UTC

fastmark wrote: post #113

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 i…

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

Re: TPP banning requirements to transfer or access to source code of software

#140

Post by justsee » Fri, Nov 06, 2015, 11:53 PM UTC

crdoconnor wrote: post #19

forgotpwtomain wrote: post #3

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) ?

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.

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...