[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?)

[josaka]

"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.

[briandear]

They are contracts of adhesion and by definition are explicitly NOT negotiated contracts. They are 'take it or leave it' much like insurance policies.

[oneJob]

Some states are beginning to throw their support behind OSS. It seems the "nation-state" has been "soon to be irrelevant" for a while now, but until "soon" arrives, the State is still a primary actor with immense resources and influence. So saying, "these are rules for States" as a way to minmize the importance of this section of the TPP does not make sense to me. At all. It frankly sounds like crazy talk. Sorry, but is does. As software becomes more pervasive and goods and services are delivered by or composed of software more and more, software will take on attributes once associated soley with "real property" and "free speech". As that happens, legal language like this limiting the State's ability, in any way, to legislate software will limit the State's population from having a say over how software should be treated in that population, in that society, in that community.

If the TPP does not impose the same restrictions on contracts between private parties, that is not a benign thing. Private parties includes corporations, and most contests between legal corporations and "individual natural persons" eventually are settled in the interest of the party with more resources, often the legal corporation. Such challenges may play out in the markets or the courts, or it may play out over an even longer period in the legislature by changing the laws regulating or guiding the markets and courts. Thus, hamstringing the State's ability to have laws counter to this section of the TPP actually saves an entity the time and money which might otherwise have been needed to lobby a State's legislative bodies or develop the legal framework by way of a legal process. It fixes the playing field in favor of non State actors. Currently the most powerful non State actors are for profit corporations and privately held companies. This section of the TPP is not at all neutral, if understood to apply only to States. It would then heavily favor corporations and companies, and it would limit State actors and thus their populations. It would favor entities driven by profit motive or the motives of whomever the individuals are that own said private companies. That. Is. Huge. That is a fundamental shift in how, say someone like an American like me, many people might want to govern the communities they are a part of.

[mikekchar]

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.

[DannyBee]

"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.

[belorn]

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.

[mikekchar]

In the case of the GPL, the "or comply with the license" doesn't even apply. As soon as you violate the license, the license is terminated. This is to stop people from violating the license and then saying, "Ok, Ok, I'll comply" when they are threatened with a lawsuit. In practice, copyright holders usually forgive the other party and offer then a new license, though. So, again from my layman's point of view, I don't think this is an issue since the court can't force the other party to disclose their source code. It can only grant an injunction on distribution.

In every case, the use of the license (and subsequent release of the source code) is a choice. Of course, without choosing to follow the license, you can't distribute the software. As far as I understand, this is by design and the reason why the GPL is so robust.

I also think this is a negotiated license because the GPL specifically says that you don't have to accept it. It is a written offer for a license. Sometimes, if you contact the copyright holder you can get a different license. Usually now. Just because the offer is made to everybody, doesn't mean it is not a negotiation (I don't think... but that's probably where knowledge of the law would come in handy ;-) ).

[zkhalique]

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?

[bcg1]

Danny,

In your opinion how does this affect the ability of governments to pass laws requiring them to use only free and open source software? I think this is incredibly important not only for software freedom but for a properly functioning free society in general (think of voting, financial accounting and digital currencies, etc). Would such use be considered "critical infrastructure" or does this provision preclude passing such laws?

[vonmoltke]

> 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.

[DannyBee]

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 by person of another party. That is not "no party can compel the owner" it's "no party can compel access to source code that meets certain conditions".

Period. There is no "nobody can compel the owner" part in there that i see.

The only reference to ownership is around a pre-req to compulsion. IE if you break it down, it says:

"unless the software that meets the following conditions, you can't compel access to code

Conditions:

A. It's owned by a citizen of the party

or

B. It's not being done as a condition for the import, distribution, sale, or use of such software, or products containing such software, in its territory"

[vonmoltke]

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.

[DannyBee]

"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.

[vonmoltke]

> 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.

[fineman]

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.

[cyber]

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.

[s73v3r]

Party means party to the treaty. As in, a country. It has no bearing on private sector agreements, such as the GPL.

[mbreese]

The are the owner of the code that they wrote that depends on the GPL code... so they might not own all of the code, but they presumably own some of the code. And that's usually the most interesting bits that one might need (when modifying a device, for example).

I still don't see how the State would be involved here though...

[DannyBee]

States make laws about import and export, and ignoring that, are the enforcement mechanism. The legal authority under which things happen is going to be "The party".

IE If i get a federal judge to order source code access, do you think I did it, or instead that a party (IE US) just compelled access?

(Hint: The law mostly says the latter ;p. That's why i can get law enforcement to enforce it. Because it's an order of the government, not an order of me)

Now, whether it meets the other conditions for the "no compulsion" part, that depends on the circumstances.

[fryguy]

With the right spin, I think it would still be allowed by a State to not allow a software in a market that violates an OSS license. This is because they are blocking software that doesn't have the right to be redistributed because it doesn't complete the requirements to be redistributed. The State isn't requiring the source to be revealed, just that it has the ability to redistribute the software.

To make a poor analogy, imagine that the law said States can't require people to kneel and kiss a pinky ring in order to enter the State. However, they can require a valid passport, even if in Guilder in order to get a passport you have to kneel and kiss the pinky ring of the King of Guilder.

[fineman]

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.

[snowwrestler]

It's worth pointing out that legal language almost always permits more than one interpretation, which is why disputes are adjudicated by humans in (hopefully) impartial courts, under processes that permit the parties to provide testimony and evidence to support one or the other interpretation.

So, just because a piece of legal language can be interpretted a certain way, that does not mean it is likely to prevail in court. In this sort of case, I'd be surprised if any TPP negotiator or representative, or any documentation from the TPP process, will indicate that this language was intended to break the GPL and open source in general.

[quadrangle]

The US could not, under the TPP say "well, if you want to sell android devices in the US, you have to produce the GPL source code".

But that's unrelated to today's GPL situation, because the way the GPL works today is: "I as a copyright holder sue you for copyright infringement because you don't have my permission to my work… by the way, I'll give you permission if you follow these license terms…"

[matthewmcg]

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.

[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

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

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

[cookiecaper]

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?

[andrewmutz]

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?

[cookiecaper]

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".

[briandear]

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

[fineman]

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.