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

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

#81

Post by pbhjpbhj »

stingraycharles wrote: post #28
xg15 wrote: post #15

Earlier quoted context omitted.

It also would prevent government agencies from demanding i.e. the source code of a car's ECU to verify its safety and emissions behavior. The only way out of this would be to declare car ECUs (or other systems) as "critical infrastructure", the definition of which I'm sure will be subject to many political tug-of-wars once this is implemented.

Playing the devil's advocate here, but you shouldn't need access to a car's source code to measure its emissions. The test is broken, not the software.

You don't, you need access to great if those are the emissions when the engine is running as it normally would under regular driving conditions.

It's like weighing someone, you don't need to see their feet, but if you can't then you can't tell if they have both feet on the scale.

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

#82

Post by vonmoltke »

DannyBee wrote: post #76
vonmoltke wrote: post #60

Earlier quoted context omitted.

> 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. The treaty specifically states a party cannot compel the owner to reveal the source code. Arguably someone violating the GPL or similar license is not the actual owner of the code.

I'm not sure why you believe this. I quoted the actual text: "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." It does not say no party can compel an owner, it says no party can compel access to the source code owned…

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 if proving infringement required access to the author's or infringer's source code.

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

#83

Post by jessaustin »

dataker wrote: post #35

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.

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.

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

#84

Post by andrewmutz »

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…

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

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

#85

Post by pbhjpbhj »

phkahler wrote: post #65
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…

To me, it says a government can not mandate the use of open source software: "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." Or am I misinterpreting that? Does this preclude a government from requiring the use of open…

I've got to agree this seems like an offensive against democratic movement towards open source being required in the public sector.

With all the secrecy one has to try and determine who might have written these clauses (USA multinational corporations presumably) and what the clauses are supposed to achieve (higher profits).

Preventing countries from freely moving away from the strongest capitalist models of software production seems like something that's likely to appear in TPP & TTIP; anything socialist also seems like it's going to be a target.

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

#86

Post by josaka »

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…

"GPL and other open source licenses are arguably not commercially negotiated contracts"

This is the key issue. It seems like a copyright license to code under GPL would be commercial, in the sense that the parties are exchanging a license for the recipient undertaking the GPL obligations. Whether it's "negotiated" seems like a more difficult question.

One interpretive guide could be to look to the reason for the provision. I suspect the purpose was to allow for source-code escrow agreements in things like enterprise software deals. It would be odd for the enforceability of those provisions to turn on the degree to which the parties "negotiated," so I suspect this will be a low bar.

Rather, I suspect the term "negotiated" is intended to block end-runs around the default rule. Otherwise, governments could obligate copyright holders to burden their code with GPL-like code, e.g., a reg saying you can only provide voting machines if they are based on a modified version of the Linux kernel.

So I think GPL source-code disclosure obligations remain enforceable, absent coercive acts by a government to force parties to undertake those obligations. But this is really speculative.

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

#87

Post by cookiecaper »

andrewmutz wrote: post #84
DannyBee wrote: post #56

Earlier quoted context omitted.

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…

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

Probably because it usually doesn't involve any commercial, that is, monetary, transaction, and it doesn't involve any negotiation; it's just slapped on by someone you've never talked to. How would it be considered a commercially negotiated contract?

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

#88

Post by cyber »

vonmoltke wrote: post #82
DannyBee wrote: post #76

Earlier quoted context omitted.

I'm not sure why you believe this. I quoted the actual text: "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." It does not say no party can compel an owner, it says no party can compel access to the source code owned…

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…

Yes, it means that some states can allow rampant piracy, and other states who are aggrieved can not block the import from the offending stats. Which is precisely what some of those states want.

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

#89

Post by andrewmutz »

cookiecaper wrote: post #87
andrewmutz wrote: post #84

Earlier quoted context omitted.

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

Probably because it usually doesn't involve any commercial, that is, monetary, transaction, and it doesn't involve any negotiation; it's just slapped on by someone you've never talked to. How would it be considered a commercially negotiated contract?

A contract doesn't need to have any money change hands, as long as both sides get something out of the deal (have "consideration"). The GPL does have this as one side gets the right to use source code and the other side gets guarantees on how that source code will be used.

Also, being slapped on is not a problem for a contract. We interact with adhesion contracts every day that are slapped on to things. When you accept a valet ticket for parking it has a contract on the back that you are assenting to by using the service. No negotiation occurs and adhesion contracts are valid contracts.

Since "commercially negotiated" is not a term of art, why do we think the GPL is not one?

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

#90

Post by cookiecaper »

andrewmutz wrote: post #89
cookiecaper wrote: post #87

Earlier quoted context omitted.

Probably because it usually doesn't involve any commercial, that is, monetary, transaction, and it doesn't involve any negotiation; it's just slapped on by someone you've never talked to. How would it be considered a commercially negotiated contract?

A contract doesn't need to have any money change hands, as long as both sides get something out of the deal (have "consideration"). The GPL does have this as one side gets the right to use source code and the other side gets guarantees on how that source code will be used. Also, being slapped on is not a problem for a contract. We interact with adhesion contracts every day that are slapped on to things. When you acce…

I'm not saying the GPL is an invalid contract; I agree that it is a valid contract. I gave reasons why it may not be considered "commercially negotiated". If they just meant any valid contract, they would've just said "contract" instead of "commercially negotiated contract".
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