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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   Printer-friendly
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.

Original Submission

 
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  • (Score: 0) by Anonymous Coward on Saturday November 07 2015, @02:36PM

    by Anonymous Coward on Saturday November 07 2015, @02:36PM (#259965)

    Is a signatory government requiring that some or all software that that government uses be FLOSS banned under this?
    It would seem that requiring some or all government used software to be FLOSS is also, indirectly, requiring that the source be accessible.

  • (Score: 3, Informative) by wonkey_monkey on Sunday November 08 2015, @12:50AM

    by wonkey_monkey (279) on Sunday November 08 2015, @12:50AM (#260168) Homepage

    Is a signatory government requiring that some or all software that that government uses be FLOSS banned under this?

    Nope.

    What it's saying is that signatory governments can't demand source code as a requirement for allowing someone to sell their software (to anyone who wants to buy it with or without source code) in that territory.

    If the government's doing the purchasing, they can still impose such demands on the seller as they see fit, as can anyone else who wants to negotiate such things before buying it:

    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

    In other words, this is banned:

    Seller: I want to try to sell my software in your country to anyone who wants to buy it.
    Govt: Only if you give us, the government, the source code first.

    This is not banned:

    Seller: Do you want to buy my software?
    Govt: Yes, but only if you give us the source code.

    --
    systemd is Roko's Basilisk