[Linux-aus] Request: Officially oppose TPP Source Code provision

[Cameron Simpson]

On 06Nov2015 07:27, Luke John <email at lukejohn.me> wrote:
>Hopefully someone will be able to give a more expert opinion, however
>even on a conservative reading this section appears to have at least
>the following two outcomes.
>
>Governments are unable to set open source as a procurement requirement.

It doesn't say that. It doesn't say anything about _procurement_. It says 
governments may not prevent closed source from being offered for sale.  
Obviously any _buyer_ can choose to buy or not based on whatever criteria they 
like. (Indeed, it even is explicit: see 3(a).)

>Governments are unable to require certain software be open to
>inspection by public or government.

They are, if it is "critical infrastructure". I would think any government 
could declare all sorts of things critical, for example control systems for 
traffic or trains, and in democracies, software in voting machines.

>Whilst the second isn't something I understand to be a current
>practice, it is certainly something that has been called for by parts
>of our community.  With the recent VW scandal it has also attracted
>the wider publics attention and there's been encouraging discussion of
>it.

The VW scandal was exposed by black box testing, not requiring source code.

IANAL,
Cameron Simpson <cs at zip.com.au>

>Kind Regards,
>Luke John
>
>On Fri, Nov 6, 2015 at 6:10 AM, Tennessee Leeuwenburg
><tleeuwenburg at gmail.com> wrote:
>> I'm not sure that a face-value reading actually tells us what is going on
>> here. My reading of point one is that it doesn't actually refer to
>> open-source software, but rather to protecting proprietary closed-source
>> software. Is anyone on this list able to give a more expert overview of what
>> these clauses mean?
>>
>> On 6 November 2015 at 00:38, Luke John <email at lukejohn.me> wrote:
>>>
>>> The final text of the TPP has been officially released
>>>
>>> I'd like to request LA to put out an official statement opposing the
>>> following section.
>>>
>>> ## 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.
>>>
>>> Kind Regards,
>>> Luke
>>>
>>>
>>> http://www.mfat.govt.nz/Treaties-and-International-Law/01-Treaties-for-which-NZ-is-Depositary/0-Trans-Pacific-Partnership-Text.php