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

Michael Cordover la at mjec.net
Fri Nov 6 11:41:03 AEDT 2015

Hi all

A few comments from my reading. I'm not a public international lawyer
and treaty interpretation is complex, so my views should not be taken as
gospel. They represent a first impression, not a carefully-researched
legal analysis.

On Fri, Nov 6, 2015, at 10:27, Luke John wrote:
> Governments are unable to set open source as a procurement requirement.

Art 14.17 does not appear to apply to government procurement at all: see
Art 14.2(3)(a).

On 6 November 2015 at 10:24, Tennessee Leeuwenburg wrote:
> My reading of point one is that it doesn't actually refer to open-source software,
> but rather to protecting proprietary closed-source software.

This is also my reading of the general effect of Art 14.17.

Art 14.17(1) imposes prevents a government from imposing the
requirements "as a condition for the import, distribution, sale or use
of such software". The GPL is not a government imposing that
requirement, but is instead a licence condition, akin to " terms and
conditions related to the provision of source code in commercially
negotiated contracts".

On Fri, Nov 6, 2015, at 10:27, Luke John wrote:
> Governments are unable to require certain software be open to
> inspection by public or government.

This is a likely consequence in relation to "mass-market software". I
think this is the most significant possible concern. As far as I'm
aware, taking this step would be an unprecedented in Australia. I do not
think it likely that any Australian government would do this, even if
this were not a provision of the TPP.

While there is some ambiguity (in a trade agreement? shocking! /s) I
very much doubt this has great significance for open source generally.




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