Copyleft terms may become unenforceable in 11 countries due to the CPTPP

https://www.linuxjournal.com/content/copyleft-terms-may-become-unenforceable-11-countries-under-cptpp

by zeveb • 8 years ago

270 103 8 years ago

jasode4• 8 years ago

The relevant text from the linked pdf[1]:

Article 14.17: Source Code
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.
2. For the purposes of this Article, software subject to paragraph 1 is limited to mass-market software or products containing such software and does not include software used for critical infrastructure.
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;

To point (1), the text seems like something Steve Ballmer would write to because "GPL is a cancer".

To point (2), I wonder if "GNU gcc" is considered "mass-market" or "infrastructure".

To point (3), I assume that proprietary software users will want the most narrow definition of "commercially negotiated contracts". This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract". Therefore, copyleft would be null & void.

[1] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/...

tux1968• 8 years ago

So these aren't accidental consequences of provisions meant to address some other issue. These are specifically designed to attack GPL and other copy-left licenses.

Myrmornis• 8 years ago

Who is behind this antipathy to copyleft? I wasn’t aware it was on the radar of the sorts of entities involved in writing international trade agreements.

dragonwriter6• 8 years ago

They seem on the surface to be designed to attack “source code as a condition of import license” laws,

zmmmmm• 8 years ago

The original intent was inspired (I think) by countries like China demanding the source code to Windows as a condition of it use in their country. GPL is just collateral damage due to (a) politicians being almost completely ignorant about everything technological, and (b) the whole thing being negotiated in secret with no input.

When you put (a) and (b) together, it seems like a miracle if the whole thing is not a disaster.

ISL3• 8 years ago

At first glance, text like this may have been included to prevent countries from attempting to claw source code from closed-source software and cloud vendors.

It would appear to be troublesome, at a minimum, for copyleft projects, too.

sounds2• 8 years ago

How would a country claw source code from a vendor in another nation, if they did not sign this agreement? File a lawsuit?

I suppose the most common method is to seize assets or personnel that are located in-country.

sounds2• 8 years ago

The 11 countries who signed (many still need to ratify the treaty). Alphabetical order:

1. Australia

2. Brunei

3. Canada

4. Chile

5. Japan (already ratified)

6. Malaysia

7. Mexico (already ratified)

8. New Zealand

9. Peru

10. Singapore

11. Vietnam

Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend.

MisterTea• 8 years ago

Much of the terms of this treaty were negotiated behind closed doors with "industry leaders" (large corporate interests) invited to attend.

In other words: Business as usual.

lopmotr• 8 years ago

I wish people would stop wanting to micromanage their governments. Some things, like negotiation, military planning, or crime investigation don't work when all their details are made public as they happen. Trade deals are never secret once they're completed so it's not a cover-up. You elect leaders who you believe will work in your interests and leave them to get the job done. If they do it wrong, you can unelect them or their whole party next time. This actually happened in America when people didn't like the TPP that Obama agreed to behind closed doors and they elected Trump who withdrew from it.

slavik815• 8 years ago

It will be ratified in Canada without a doubt. The negotiations spanned both Liberal and Conservative governments, and the public wants contingency plans for US trade disruptions. Trump has made very clear that he does not value free trade with Canada, and his threat to dissolve NAFTA is a serious one. Expanded trade with Europe (CETA) and the Pacific Rim (CPTPP) would strengthen Canada's negotiating position by reducing our dependency on the United States.

It's fortunate that the United States left the TPP. They were the ones demanding draconian intellectual property laws. With the US gone, the worst clauses could be removed and the agreement was greatly improved.

The full text has been public for a while now. I'm not a fan of everything in there, but the good outweighs the bad. Linux Journal's concerns are based on a misunderstanding.

dragonwriter6• 8 years ago

This means reading the LICENSE.TXT that states "copyleft" and downloading from github is definitely not a "contract".

It's possibly a contract, but it is clearly not “commercially negotiated”, it's a contract (if at all) of adhesion.

incompatible• 8 years ago

My understanding is that a license is not a contract, but simply permission from one party to do something. A license can be part of a contract e.g., when a license is provided in exchange for money. However, if I just plonk an open source license on a bit of software I wrote, there's no contract with anybody.

It's unlikely that invalidating an open source license would be of benefit to a user, since they then have no legal right to make copies of the software.

kps• 8 years ago

I don't see how this has anything to do with license enforcement at all. It only means participating countries can't block the import of closed-source software.

bunderbunder3• 8 years ago

I'd want to get an international law expert's take on this before getting too worried.

Based on skimming the preamble, it looks to me like "Party" is capitalized to indicate that, within the context of this document, Party has a very specific meaning: One of the nation-states that has entered into this trade agreement.

If that's a correct reading, then this might have some unintended consequences around government open source projects, but, since it isn't trying to place any restrictions on anyone who isn't a nation-state, it wouldn't be that much of a threat to copyleft in general.

I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."

jasode4• 8 years ago

I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."

Your interpretation seems reasonable. I'm guessing OSIA and the Linux Journal are interpreting it like this:

No Party (e.g. GNU GCC) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. GCC), or of products containing such software (e.g. GCC), in its territory.

The "such software" is misinterpreted as referring back to a hypothetical "GCC" instead of "Atlassian".

Your interpretation would be more like:

No Party (e.g. USA) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. Atlassian), or of products containing such software (e.g. Atlassian), in its territory.

With that interpretation, the text is a response against China and Russia demanding source code from USA and European tech companies. E.g. https://www.google.com/search?q=china+russia+import+share+so...

If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.

gregknicholson3• 8 years ago

I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."

This is terrifying. Foreign-made self-driving cars can deliberately kill people via software algorithms, and even the government can't insist on seeing the source code to find out whether the car maker is incompetent or malicious.

dragonwriter6• 8 years ago

If that's a correct reading, then this might have some unintended consequences around government open source projects

Restrictions on states in treaties also restrict their judiciary and their executive in enforcing judicial acts, not just acts taken in running the government administration. So, if the terms conflicted with what the state must do to give effect to enforcemrnt of open source licenses, it would make them unenforceable even if it doesn't prohibit private parties from offering and accepting them.

nerdponx• 8 years ago

Does anyone have a link to a chapter where they define that term?

kevin_b_er2• 8 years ago

For what purpose were these items added? It looks like a direct attack on open source otherwise.

Taniwha• 8 years ago

it's to stop countries requiring companies from releasing their source code as a condition of use in their countries

scythe• 8 years ago

Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal.

More generally, it would seem very out of form for a free-trade deal to include provisions that undermine the freedom of contracts. Contracts are an important part of capitalism, after all.

tzs2• 8 years ago

Point (3a) seems to be explicitly protecting copyleft. A copyleft license is basically (IANAL) a commercially negotiated contract. It just happens that the negotiations are trivial: the licensor will accept one set of conditions or no deal

You could just as validly say the same thing about pretty much all mass-market software. Replace "copyleft license" with "terms of service" or "end user license agreement".

It's hard to think of any mass-market software that would not be covered under that interpretation, which is a strong hint that the interpretation cannot be right.

What I believe (3a) is trying to cover cases where a Party (e.g., Australia) is acquiring software for its own use. For instance, suppose Australia wanted to use AgileBits' 1Password [1] on all the government's desktop computers.

1Password is mass-market software, and this treaty would prohibit Australia from requiring that AgileBits make the source available as a condition of selling to consumers in Australia.

But if Australia negotiates a deal with AgileBits to supply Australia's government istself with 1Password, rather than the government simply buying it the same way consumers would, (3a) applies and the treaty does not apply.

[1] Picked for this example because it is the only well-known mass market software that I could think of offhand that (1) a government might reasonably want to mass deploy internally, and (2) is owned by a company that is in a country (Canada) that will be a Party to this treaty.

kcolford• 8 years ago

This phrasing may be slightly deceptive, but in this instance the word "Party" specifically refers to the countries (and/or their respective government) signing this agreement.

All in all, it only says that a government cannot demand the source code to a piece of software that is being exported from another country. Although, they can still force a software developer in their own country to give up the source code to a piece of software. It goes on to add some exceptions but is otherwise very inconsequential.

I am not a lawyer, but this a paraphrasing of an explanation given to me by someone who is a copyright/securities lawyer in one of the member countries (Canada).

coldacid• 8 years ago

How does one specialize in both copyright _and_ securities law? I could understand copyright and real estate or securities and corporate law, but that seems to be a novel pairing.

pc862• 8 years ago

I don't think you need to take "the most narrow definition" of a contract to think that LICENSE.TXT doesn't qualify. Especially when you add the modifier "commercially negotiated" to it. I played no role in negotiating GPL.

mcguire2• 8 years ago

I believe the FSF has argued that the GPL is not a contract in order to defend against specifically this problem. Without the GPL, the recipient has no license to redistribute the software. Presumably, that couldn't be enforced in the countries under the treaty, but they would have problems distributing things outside those countries.

kazinator• 8 years ago

Who the hell has ever been in a position to demand the source code to mass-market software as a condition of its use?

"I demand the full, buildable source to MS Outlook before accepting this meeting request!"

Still, does making this type of demand have to be made against the law?

URSpider943• 8 years ago

Countries with highly regulated economies dominated by state-run businesses will often make this a condition of winning a government contract. In the sense of, if you want to provide the OS and productivity suite to all of our government offices, you must hand over the source code for “inspection”. When the contract is re-bid in 10 years, you lose out to the new government-owned software company,

bdowling3• 8 years ago

There's nothing to see here. "Party" (capitalized) and "person of a Party" have specific meanings in this document, as defined in the definitions section:

"Party means any State or separate customs territory for which this Agreement is in force;"

"person of a Party means a national or an enterprise of a Party;"

(Chapter 1, Section A, Article 1.3, [0])

So the statement "No Party shall require the transfer of..." restricts what a State that signed the treaty may do to the persons and enterprises of another State. For example, China can't require Microsoft to disclose its source code as a condition to selling Windows in China.

Regarding the other quote about contracts, the operative part is "Nothing in this Article shall preclude". So this treaty has no effect on terms regarding source code in commercially negotiated contracts. Even if you are of the misguided belief that FOSS licenses are contracts, this provision does not affect them.

Finally, FOSS licenses are not contracts because they do not contain bargained-for reciprocal promises. They are grants of rights, subject to terms and conditions. A FOSS license operates as a defense against copyright infringement. If the terms and conditions are not met, then the license is void. The infringer can then be sued for copyright infringement, not breach of contract. This has two important implications: (1) a court won't order specific performance (a contract remedy) in a case of copyright infringement, and (2) a third party has no standing to sue, because where there is no contract there can't be a third-party beneficiary (only the rights-holder may sue).

[0] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/...

(Edit: Clarified lack of breach of contract claim.)

slavik815• 8 years ago

I don't think it really changes anything, but there have been cases where the GPL has been considered a contract. https://perens.com/2017/05/28/understanding-the-gpl-is-a-con...

smsm423• 8 years ago

It says "no Party" - does it mean this only binds the signatories of the treaty - which probably are countries and not individual developers? And if so, I would read it as "we promise there will be no state law to mandate all software in the country be open-source" which seems to be reasonable (even though I never heard about any country trying to pass such a law anyway) not "open source licenses are un-enforceable". Also, it says "owned by person of another Party", so it's mostly even "we promise no import/export bans on non-open-source software", and the intra-governmental actions are not even discussed, only cross-governmental ones. Also (3) says if the government negotiates contracts, it still can require the software to be open-source, it just can't have blanket ban on non-open-source software imports altogether.

Am I misreading it or misunderstanding what "Party" means?

jedberg• 8 years ago

That flowchart looks scary, but I'm missing the part that gets me from A to B. Why are those the outcomes?

lemoncucumber• 8 years ago

If that part of the GPL is invalid, wouldn't that leave anyone who wanted to distribute GPL-licensed software without a valid license to do so? It seems crazy that it would leave intact the right to distribute given that as it's written that is contingent upon providing the source.

gmueckl5• 8 years ago

[Please see edit below]

My cursory understanding is that the GPL becomes more like the BSD or MIT license in that it becomes lawful to distribute altered binaries without the corresponding altered source code.

However, legal texts are tricky and the correct interpretation of this one my well be different from my current understanding.

Edit: -----

After rereading parargraph 1 another three times, I think that the wording of the text suggests a far broader scope than it actually covers.

"...as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory."

This part of the sentence limits the application of the rest of the paragraph to software that crosses the border into the country in some way or another. The sentence also begins with

"No Party..."

where parties are the countries (represented by their governments). So this is about government regulation of software that somehow gets into the country some way or another.

" shall require the transfer of, or access to, source code of software owned by a person of another Party"

With all the preconditions above in mind, this actually means that no government can impose rules on somehow imported software that would require the seller in another country to provide the source code with the product. Effectively, this is only a restriction on lawmakers. Individual persons and companies are not directly affected this section of the treaty.

bluGill• 8 years ago

I believe you are wrong. If the license doesn't apply as written, then nothing in copyright law gives you any rights. GNU has always argued that if you don't accept the GPL, then your use of the software is pirating it under copyright law. That is the same consequence as would happen if I sold a library for money, but instead of buying from me you copied it.

If you want to be evil and have written any GPL you can sue everybody in the target country that uses your software. Since the GPL isn't legal in their country residents of that country have no legal right to use your code. Note that you need to write "mass market software" for this to apply.

Of course I'm not a lawyer, consult a lawyer if you need legal advice.

kevin_b_er2• 8 years ago

Unless it also removes that from all Australian laws, then there's no law to base GPL enforcement on. Remember: Treaties like this are backdoor ways to rewrite your countries' laws in ways that can't easily be undone by the future will of the people in changing their government.

otakucode3• 8 years ago

as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.
This part of the sentence limits the application of the rest of the paragraph to software that crosses the border into the country in some way or another.

No, the word "or" is the operative one here. So if you deleted the word "import", it wouldn't matter. Yes, the law applies to imported software, but it also applies to any software which is distributed in its territory, or sold in its territory, etc. No border-crossing is necessary.

belorn• 8 years ago

Correct. I don't see how a license would turn into a universal permission if they suddenly made specific form of licenses illegal.

shmerl2• 8 years ago

Current language is surely messed up. If they meant it can't be required for software that's not already open - they should clarify that. And why such stupid provision be included to begin with? If someone wants to mandate FOSS as part of some import, it's their choice why should it be forbidden?

tzs2• 8 years ago

What it is saying is that they can't close the market for mass-market software to foreign closed source software. It's not saying that all foreign software mass-market software must be closed to be sold in their market.

shmerl2• 8 years ago

Why should it be part of some restriction? Sounds like a sneaky way to get preferential restrictions. I.e. if they wanted to make it sound equal, they should have said "any software".

user5994461• 8 years ago

Copyleft was never valid internationally. It is unclear in some jurisdictions whether copyleft is possible and it was never tested in court.

hinkley• 8 years ago

In fact I've worked for two multinationals where we had to remove loosely-licensed software from our dependency chain and replace it with MIT licensed alternatives because the IP guys were fine with MIT but public domain or copyleft made them blanch.

The first one was ten years back, and they acted like this has always been a problem.

otakucode3• 8 years ago

I know that there are several nations, Germany being the one I've read the most about, that do not support the notion of 'public domain' at all. It is simply impossible there to give up a copyright. You can extend rights to everybody, but you are still legally bound to any work you create for things like liability purposes. I've always been surprised that this isn't a bigger problem than it sounds. I'd be quite worried about putting code online if my countries legal system made me forever liable for its use regardless of what kinds of license I released it under.

pasbesoin• 8 years ago

It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product.

So, I expect all 11 of these countries to stop using all said software, forthwith and without exception.

mrep2• 8 years ago

Funny, because that reminds me of GDPR. If you don't accept a sites business model, then I think you should be denied access from that product.

cosmojg• 8 years ago

Funny? It's a reasonable sentiment.

isostatic• 8 years ago

It probably doesn't work this way (IANAL and more), but philosophically -- and rhetorically, here -- this should be pretty simple: If you don't respect the license, you should not be able to use the product.

Well I can ignore the GPL all I want and still use GPL software. There's nothing I can see in copyright law that prevents me from doing that. Microsoft and co conditioned people into thinking that they required permission to use software, but that's certainly not the case in software I use.

However if I want to do something that I can't do in copyright law (like give someone else a copy), I require permission from the copyright holder. That permission is pre-emptively given in the GPL. If I don't like those terms, that's fine, I can contact the copyright holder and attempt to negotiate other terms.

throw2016• 8 years ago

No major country including the US is going to allow itself to be forced to buy software without source code if required.

Infact government contracts and even large private contracts require source code or escrow for continuity. Anything defense or critical infrastructure related will require code. So both from a technical, legal and national interest standpoint this can't pass the smell test. Vendors can always choose not to do business.

Some large country may still try to arm twist smaller countries and do backroom deals with allies but on the whole its unlikely to pass because no one will sign it.

slavik815• 8 years ago

CPTPP is almost identical to the original TPP

11 of 20 articles were struck from the intellectual property chapter of the agreement, including the ones I found to be most concerning. It's a very different agreement for software.

shiado• 8 years ago

In article 14.17 what is the legal definition of "source code"? Are comments in code "source code"? There isn't really a precise definition of source code is there? I could run many sorts of IP through a compiler of my own design and get a runnable binary out of it. I propose that people write a compiler that takes a Disney film as input and outputs a binary that outputs "hello world!" on x86_64 Linux. Then we can call into question the legitimacy of the IP behind the Disney film because it is "source code".

tomohawk• 8 years ago

This is why treaties like this are so dangerous. A treaty really should be about matters of state, and the conduct between states. Instead, "treaties" like this are really a means of creating legislation outside of the elected legislatures that should be dealing with this.

Ratifying these sorts of laws through a treaty process has the power to abrogate a state's constitutional, judicial, and legislative laws - disenfranchising the people. Its the consequence of "rule of lawyers" instead of "rule of law".

Politicians engaging in these sorts of shenanigans really should not be welcome in polite company.

gowld• 8 years ago

Nothing to see here. As commenters here and on the article note, the author is confusing governments who sign the CPTPP with persons/organizations who reside in those governments' territories.

Copyleft terms may become unenforceable in 11 countries due to the CPTPP

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