Dear Dennis, David, and all:
> -Original Message-
> From: Wheeler, David A
> Sent: Saturday, November 07, 2015 3:10 PM
> To: Dennis Clark; spdx-legal@lists.spdx.org
>
> Dennis Clark:
> > I would be very interested to know if any of you have any thoughts about the
> TPP provisions that impact software distribution, particularly source code
> redistribution obligations:
> > http://www.keionline.org/node/2363
Following are two excerpts from the main TPP provision quoted and discussed in
the KEI Online article that I want to key in on.
Article 14.17: Source Code
1. No Party shall require the transfer of... source code ... as a condition for
the import, distribution, sale or use of such software, or of products
containing such software, in its territory. (Section 2 provides that this
article applies only to mass market software that does not include software 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
>
> David Wheeler:
> I asked someone else whose legal opinion I respect about this. (I don't have
> permission to share his name, so I won't do that here.) He said that the view
> of that article is misleading; instead, this provision precludes conditioning
> territorial market access on mandatory source code disclosure. In other
> words, as I understand it, a country can't require that ALL software from
> outside provide the source code to just that country.
>
I think the person-whose-legal-opinion-David-respects has the correct
interpretation. The language of section 1 states that a party (i.e. a member
nation) cannot compel disclosure of source code regarding (1) mass-market
software that is not used for (2) critical infrastructure. In other words, a
member nation cannot force closed-source software to open up the source code.
The language of section 2 states that licenses that relate to the provision of
software code in commercially negotiated contracts are **not** precluded by
this Article. That would mean that open sources software licenses should
retain their validity (or, maybe to be more precise, FLOSS licenses are not
invalidated by this Article).
Bear in mind, I have not done an exhaustive study of the TPP, so I am not
prepared to speak authoritatively. But this text certainly does accomplish
what the article in KEI Online claims. I will continue my review and add my
thoughts.
* * * * * * * * * * * *
Thomas H. Vidal
Partner, Abrams Garfinkel Margolis Bergson, LLP
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