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TPP Has Provision Banning Requirements to Prevent Transfer of or Access to Source Code

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

An Anonymous Coward writes:

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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Original Submission

• Re:How is that worse than it is now? Re:How is that worse than it is now? (Score: 3, Informative) by fido_dogstoyevsky on Saturday November 07 2015, @09:47AM

  by fido_dogstoyevsky (131) <{axehandle} {at} {gmail.com}> on Saturday November 07 2015, @09:47AM (#259891)

  Essentially, signatories are prohibited from adopting (Free and) Open source software.

  If they put out a tender for bids to build a software system, the winner is allowed to keep the resulting source-code secret. The contract is not allowed to specify ahead of time that it will be Free and Open source.

  "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;"

  --
  It's NOT a conspiracy... it's a plot.

  Parent

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• Re:How is that worse than it is now? (Score: 1) by shipofgold on Saturday November 07 2015, @12:52PM

  by shipofgold (4696) on Saturday November 07 2015, @12:52PM (#259941)

  ...plus the fact that I doubt that a "party to the TPP (aka government) puts out a tender for "Mass Market software". If a "party" to the TPP puts out a tender for bids, you can be sure it will be classified as "critical infrastructure".

  Parent

• Re:How is that worse than it is now? (Score: 0) by Anonymous Coward on Sunday November 08 2015, @02:45PM

  by Anonymous Coward on Sunday November 08 2015, @02:45PM (#260353)

  What does the exemption say "commercially negotiated contracts" instead of simply "negotiated contracts".

  The multinationals have had 5 years to craft this treaty in their favour. I suspect if a tender goes out stipulating FLOSS licensing, this will got to court. Or worse, they will simply take it to the extra-judicial tribunal and complain about lost profits for not being able to bid on the contract with proprietary code.

  Parent