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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

#91

Post by mikekchar »

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…

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 the software (under copyright law).

In order to distribute software for which you do not own the copyright, you need to have a license. If you do not agree to the license, then it doesn't even get to the stage we are talking about. You can't distribute it anywhere (under international copyright law). If you agree to distribute the source code in order to get a license, then you have agreed to do that. Is that not what is meant by a commercially negotiated contract? There is consideration on both sides (one party gets to use the software, the other party ensures that the source code is available to users of the software).

Either way, I think this wording is terrible and it worries me greatly. However, my layman's view seems to fall on the side of the GPL being OK. I would be grateful for explanations on what I may have misunderstood.

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

#92

Post by zkhalique »

mikekchar wrote: post #91
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…

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 a condition of use, they must also OFFER TO distribute the source code of any derivatives.

No one is forcing the actual distribution of the source code of derivatives. But if this distribution does not happen, the recipient CAN be sued for copyright infringement, lacking a license, no?

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

#93

Post by usrusr »

Xixi wrote: post #26
wheaties wrote: post #5

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

Germany is not part of the TPP, but assuming it were: - probably not as a blanket precondition to allow them to sell cars, - probably yes during the course of a trial if their cars were measured to have too strong emissions. Not a lawyer either.

But think of all those millions of cars VW would sure love to sell in the USA via their soon to be founded Australian subsidiary...

Extrapolating this some more, might we even see a pattern emerging where some kind of clever legal offshoring could allow domestic companies to get a stronger position vs their own governments?

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

#94

Post by matthewmcg »

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…

DannyBee's example is interesting. But since the treaty applies to software "owned by a person of another Party," couldn't the U.S. pass a law that says, in effect, "if you want to sell android devices in the U.S., you have to produce the GPL source code if the rights holder is a U.S. domiciled person?"

UPDATE--saw you already addressed this at the end of your post. Agreed.

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

#95

Post by _rpd »

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?

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

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

#96

Post by DannyBee »

mikekchar wrote: post #91
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…

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 negotiated contract? "

Generally, a commercially negotiated contract is a contract explicitly negotiated between two parties. If i have received GPL software, i have not negotiated a contract with the author or anyone else.

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

#97

Post by DannyBee »

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…

"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, yes, is a broad interpretation, but honestly, not inconsistent with how this kind of wording tends to be read by courts.

Even if you cut the last part out, the other two are still very very worrying.

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

#98

Post by [deleted] »

xg15 wrote: post #15
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…

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.

[deleted]

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

#99

Post by Rusky »

dataker wrote: post #29
chronial wrote: post #22

Earlier quoted context omitted.

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 intellec…

>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.

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

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

#100

Post by vonmoltke »

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,…

> I think the part about whether you can compel an owner is cut and dry. It says nothing about compelling owners. Period.

I was going to argue that, but after thinking about it realized I was making the incorrect assumption that the owner of the source code was the only one who could provide said code. Hence my incorrect interpretation.

> The part about countries being able to make laws about import/export, also very cut and dry. This is very clearly covered.

Not challenging that.

> The part about countries not being able to have courts order source access, yes, is a broad interpretation, but honestly, not inconsistent with how this kind of wording tends to be read by courts.

If that is the case, I don't see how any state with a decent technology sector would agree to it, because it would allow party states to basically set themselves up as piracy safe havens.

> Even if you cut the last part out, the other two are still very very worrying.

I don't think the first is worrying at all without the third. To try to extend the meaning of the first to include legal actions taken in copyright infringement cases would be tantamount to scuppering the very protections other parts of the same treaty are trying to enhance.

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