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TPP software provisions
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Dennis Clark
Hi Legal Team, 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: Regards, Dennis Clark nexB Inc. |
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Tom Vidal <TVidal@...>
I don’t have solidified thoughts, but my current status is “deeply concerned" and would like to discuss. I’ll add my thoughts once I’ve had a chance to digest this a little bit more. The copyright penalties are particularly concerning to me.
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…sorry i’ve been MIA, everyone. It’s been a busy year. * * * * * * * * * * * *
Thomas H. Vidal, Partner Abrams Garfinkel Margolis Bergson, LLP 5900 Wilshire Boulevard, Suite 2250 Los Angeles, CA 90036 Direct Dial: 310.300.2950 | Facsimile:310.300.2901 www.thomasvidal.com | www.twitter.com/thomasvidal |
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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:
The TPP appears to make copylefted software illegal, e.g., no more Linux, no more git. Or at least governments are suddenly obligated to create new laws to invalidate them. Am I reading this correctly? (I hope not.)
--- David A. Wheeler
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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: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. If *that* is the correct interpretation then I'm fine with this text; I don't see that as restraining trade or FLOSS. That said, if that interpretation is wrong, please let me & others know. --- David A. Wheeler |
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Tom Vidal <TVidal@...>
Dear Dennis, David, and all:
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-----Original Message----- 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 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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