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posted by janrinok on Saturday November 07 2015, @05:16AM   Printer-friendly
from the lawyers-rejoice! dept.

The TPP E-Commerce chapter has a provision banning requirements to transfer or provide access to software source code. This applies to "mass market software."

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; or
(b) a Party from requiring the modification of source code of software necessary for that software to comply with laws or regulations which are not inconsistent with this Agreement.
4. This Article shall not be construed to affect requirements that relate to patent applications or granted patents, including any orders made by a judicial authority in relation to patent disputes, subject to safeguards against unauthorised disclosure under the law or practice of a Party.

I'm wondering how the GPL fares here, and how much money Microsoft spent lobbying to get this included in the TPP, or if the NSA has a role in this. One aspect of this provision is that governments cannot insist on source code transparency, for mass market software, even to address concerns over security or interoperability.


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  • (Score: 2) by caffeine on Saturday November 07 2015, @06:59AM

    by caffeine (249) on Saturday November 07 2015, @06:59AM (#259852)

    This clause seems to be a good thing. It prevents a country from saying "if you want to sell your software here, you have to give us the source code", either to search for security flaws to exploit, or just for good old-fashioned state-sponsored corporate espionage.

    Access to the source code by a government to ensure that there are no back doors for some products seems reasonable to me. A smaller country that does not produce networking products, should be able to verify that the ones they want to use are secure.

    I also see is as reasonable for a government to decide if a product is safe to be sold or used in their country.

    For example, if the Australian government were to block the use of a radiation therapy machine that the TGA could not verify due to this TPP limitation, would the US based manufacture be able to sue them for access to the market?

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  • (Score: 4, Insightful) by Adamsjas on Saturday November 07 2015, @07:12AM

    by Adamsjas (4507) on Saturday November 07 2015, @07:12AM (#259856)

    For example, if the Australian government were to block the use of a radiation therapy machine that the TGA could not verify due to this TPP limitation, would the US based manufacture be able to sue them for access to the market?

    Read past the first paragraph, all the way to the second paragraph, where you find this:

    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.

    Pretty sure that covers all your objections.

    • (Score: 2) by caffeine on Saturday November 07 2015, @07:35AM

      by caffeine (249) on Saturday November 07 2015, @07:35AM (#259862)

      Critical infrastructure seems fairly hazy. Does that include the software to run a router? The operating system used by government employees? The email client used in the military? The control systems for the new F35?

      My example was the software in a machine used for radiation therapy. I'd imagine that would not be critical infrastructure but may not be covered as not being mass market. That is another hazy term.

    • (Score: 1, Interesting) by Anonymous Coward on Saturday November 07 2015, @07:45AM

      by Anonymous Coward on Saturday November 07 2015, @07:45AM (#259864)

      What if some governments want to ban some proprietary software for some mass market applications? No proprietary software can be trusted.

      • (Score: 2) by frojack on Saturday November 07 2015, @08:47AM

        by frojack (1554) on Saturday November 07 2015, @08:47AM (#259877) Journal

        Nothing in the quoted section of the TPP addresses bans. We have nothing to go on for that question.

        --
        No, you are mistaken. I've always had this sig.
        • (Score: 0) by Anonymous Coward on Saturday November 07 2015, @10:10AM

          by Anonymous Coward on Saturday November 07 2015, @10:10AM (#259897)

          One way to alleviate the problem would be to force companies to surrender the source code in some cases. Others would be to simply not use specific software. But it seems the former solution would be disallowed in this case.

  • (Score: 0) by Anonymous Coward on Saturday November 07 2015, @07:12AM

    by Anonymous Coward on Saturday November 07 2015, @07:12AM (#259857)

    That manufacturer could probably sue, yes.

    (IANAL, etc.)

  • (Score: 0) by Anonymous Coward on Saturday November 07 2015, @09:21AM

    by Anonymous Coward on Saturday November 07 2015, @09:21AM (#259885)

    The clause prohibits governments requiring source code disclosure for market access.

    This makes it illegal to demand source code escrow for safety-critical systems like pacemakers, automobiles, aircraft, and heating systems.

    It also appears to prohibit the requirement for source code disclosure when it is not safety critical, but prudent. Such as tendering contracts for digitizing archives. If proprietary file formats are used, odds are high that history will be lost.