Re: TPP software provisions

Tom Vidal <TVidal@...>

Dear Dennis, David, and all:

-----Original Message-----
From: Wheeler, David A
Sent: Saturday, November 07, 2015 3:10 PM
To: Dennis Clark; spdx-legal@...

Dennis Clark:
I would be very interested to know if any of you have any thoughts about the
TPP provisions that impact software distribution, particularly source code
redistribution obligations:

Following are two excerpts from the main TPP provision quoted and discussed in the KEI Online article that I want to key in on.

Article 14.17: Source Code
1. No Party shall require the transfer of... source code ... as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory. (Section 2 provides that this article applies only to mass market software that does not include software 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; or

David Wheeler:
I asked someone else whose legal opinion I respect about this. (I don't have
permission to share his name, so I won't do that here.) He said that the view
of that article is misleading; instead, this provision precludes conditioning
territorial market access on mandatory source code disclosure. In other
words, as I understand it, a country can't require that ALL software from
outside provide the source code to just that country.
I think the person-whose-legal-opinion-David-respects has the correct interpretation. The language of section 1 states that a party (i.e. a member nation) cannot compel disclosure of source code regarding (1) mass-market software that is not used for (2) critical infrastructure. In other words, a member nation cannot force closed-source software to open up the source code.

The language of section 2 states that licenses that relate to the provision of software code in commercially negotiated contracts are **not** precluded by this Article. That would mean that open sources software licenses should retain their validity (or, maybe to be more precise, FLOSS licenses are not invalidated by this Article).

Bear in mind, I have not done an exhaustive study of the TPP, so I am not prepared to speak authoritatively. But this text certainly does accomplish what the article in KEI Online claims. I will continue my review and add my thoughts.

* * * * * * * * * * * *
Thomas H. Vidal
Partner, Abrams Garfinkel Margolis Bergson, LLP

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