Open Source Industry Australia Says Zombie TPP Could Destroy Free Software Licensing

from the another-reason-not-to-ratify dept

It seems incredible, but the TPP trade deal is still staggering on, zombie-like. It’s official name is now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), but even the Australian government just calls it TPP-11. The “11” refers to the fact that TPP originally involved 12 nations, but the US pulled out after Donald Trump’s election. The Australian Senate Standing Committee on Foreign Affairs, Defence & Trade is currently conducting an inquiry into TPP-11 as a step towards ratification by Australia. However, in its submission to the committee (pdf), Open Source Industry Australia (OSIA) warns that provisions in TPP-11’s Electronic Commerce Chapter “have the potential to destroy the Australian free & open source software (FOSS) sector altogether”, and calls on the Australian government not to ratify the deal. The problem lies in Article 14.17 of the TPP-11 text (pdf):

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.

In its submission to the committee, the OSIA writes:

Article 14.17 of CPTPP prohibits requirements for transfer or access to the source code of computer software. Whilst it does contain some exceptions, those are very narrow and appear rather carelessly worded in places. The exception that has OSIA up in arms covers “the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts”. If Australia ratifies CPTPP, much will turn on whether the Courts interpret the term “commercially negotiated contracts” as including FOSS licences all the time, some of the time or none of the time.

If the Australian courts rule that open source licenses are not “commercially negotiated contracts”, those licences will no longer be enforceable in Australia, and free software as we know it will probably no longer exist there. Even if the courts rule that free software licenses are indeed “commercially negotiated contracts”, there is another problem, the OSIA says:

The wording of Art. 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms requiring transfer of source code in cases where their copyright has been infringed.

Without the ability to enforce compliance through the use of injunctions, open source licenses would once again be pointless. Although the OSIA is concerned about free software in Australia, the same logic would apply to any TPP-11 country. It would also impact other nations that joined the Pacific pact later, as the UK is considering (the UK government seems not to have heard of the gravity theory for trade). It would presumably apply to the US if it did indeed rejoin the pact, as has been mooted. In other words, the impact of this section on open source globally could be significant.

It’s worth remembering why this particular article is present in TPP. It grew out of concerns that nations like China and Russia were demanding access to source code as a pre-requisite of allowing Western software companies to operate in their countries. Article 14.17 was designed as a bulwark against such demands. It’s unlikely that it was intended to destroy open source licensing too, although some spotted early on that this was a risk. And doubtless a few big software companies will be only too happy to see free software undermined in this way. Unfortunately, it’s probably too much to hope that the Australian Senate Standing Committee on Foreign Affairs, Defence & Trade will care about or even understand this subtle software licensing issue. The fate of free software in Australia will therefore depend on whether TPP-11 comes into force, and if so, what judges think Article 14.17 means.

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Comments on “Open Source Industry Australia Says Zombie TPP Could Destroy Free Software Licensing”

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Anonymous Coward says:

Re: Re:

As an economist described them: “Free Trade Agreements are never free, not always about trade, but they are agreements”

It is a question of politicians and bureaucrats giving a larger and larger part of the privilege of legislation to international companies on account of politicians and ramming it through by using FTAs as an excuse. As seen by the tobacco and oil companies and their actions, they are starting to use the privileges against political deals moving towards smoke-free and environmentally conscious actions and IP is getting increasingly ridiculous.
“Shadowrun” should not be where we are going, but it is…

Thad (user link) says:

Re: Re: Re:2 Re:

Neoliberalism is an economic theory that favors privatization, deregulation, and globalization. It has nothing to do with "liberal" or "conservative" ideology as currently defined in US politics.

HW Bush was a neoliberal. So were Reagan, W, Clinton, and Obama. (Trump is harder to classify. He favors privatization and deregulation, which are classic elements of neoliberal economics, but his protectionist stance on trade is very much not neoliberal.)

Thad (user link) says:

Re: Re: Re:4 Re:

Yeah, Clinton only deregulated telecommunications and investment banking, that’s all.

The Cato Institute had this to say at the end of the Clinton Administration:

The regulatory record of the Clinton administration was better than that of George H. W. Bush, primarily because relatively little new regulatory authority was approved on Bill Clinton’s watch.

(The Cato Institute is a Libertarian think tank; from its perspective, "better" means "less regulation.")

Obama wasn’t as big on privatization and deregulation as Clinton was, but he largely let the banks off the hook after the financial crisis (which was caused, in part, by the aforementioned Clinton-era deregulation), and his "education reform" policies favored a move toward charter and private schools.

And of course his signature accomplishment, the Affordable Care Act, mandated that (most) everyone purchase private health insurance. That’s a textbook neoliberal solution. Contrary to his detractors’ cries of "Socialism!", that’s about as far from a socialist solution as it gets.

ryuugami says:


I’ve read the discussion about this on Hacker News, and several comments there pointed out that earlier in the document "Party" was defined as "signatory country".

This would mean that, as far as the literal text goes, the government can’t require disclosing the source as a condition for market access. It doesn’t put any such conditions on private citizens or companies, which means it shouldn’t impact Open Source at all.

Of course, this presumes that whichever body interprets the text later on doesn’t try to extend it to private parties as well. Some additional clarifications/assurances should probably be added to the text to stave off that type of overreach.

Lawrence D’Oliveiro says:

Re: Misunderstanding?

Also, thinking more about it, it specifically talks about requiring source code of “software owned by a person of another Party”, i.e. not the side receiving or using the software.

So all it’s doing is prohibiting the overriding of the licensing terms on which the software is being offered. Which actually seems quite legitimate.

Anonymous Coward says:

Re: Re: Misunderstanding?

Not quite, as when you modify a piece of opensource software, you are the owner of those modifications, and the copyleft license require that you give any downstream users of your changes the source for your modified version if they ask for it.

As permissive licenses like the BSD, do not require source for changes to be made available downstream, such software in not impacted by these terms, as passing on modified source code is purely voluntary.

Anonymous Coward says:

That provision kills non-FOSS licensing as well.

It isn’t uncommon for closed source vendors to license bundled FOSS code. The way the above prevision is written, says that you can no longer do that across national boundaries without decoupling. So exporting to the AU becomes a license violation in OTHER national jurisdictions for hundreds and probably thousands of closed source products.

Clearly they don’t get how much of their infrastructure is maintained by FOSS. It was nice while it lasted. Have fun in the stone age. Yep, that is a nice rock you got there.

This numbskull move really demonstrates how ignorant most of the world really is about the people they owe for the convienences in their lives. Probably what needs to happen is Linux Torvalds and Richard Stallman need to be put up for a Nobel. Their work easily warrants it. Then maybe dipshits like the ones who wrote this will clue in.

TKnarr (profile) says:

I think the out is in the fact that the prohibition is on a party requiring disclosure of source code owned by a different party. In the case of open-source licenses, the party requiring the disclosure is the one who owns the code. In such a case they wouldn’t be demanding disclosure of source code owned by a different party and the prohibition wouldn’t apply.

Anonymous Coward says:

Re: Re:

If someone modifies software, they are the owners of the modification. If they pass that software on to other people, a copyleft license requires that they make their modifications available on demand. That is license demands that they make their changes available on demand, while the law says that it is illegal to make those demands, which means that the law is outlawing copyleft software licenses, where whoever is given, or sold a copy of the software can demand the source code for the software that they received.

Permissively licensed software is caught up by these laws because the release of source code for modifications is purely voluntary.

Anonymous Coward says:

Re: Re: Re: the law says that it is illegal to make those demands

The whole point of copyleft licenses is that the distributor of the software should make the source code available when users of the code they distribute ask for it, which is makes copyleft licenses illegal, as that is what they require of anybody who modifies the code.

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