[TriLUG] TPP could invalidate the GPL

[Aaron Joyner via TriLUG]

*Executive summary:* Yes, this *might* constrain governments which sign the
TPP from publishing code as GPL, or releasing GPL-licensed updates to
projects with a GPL-style license.  This would not affect projects with
Apache or BSD style licenses, and the governments could plausibly release
updates to GPL projects by simply releasing their patch in the public
domain.

*The asjoyner version:*
When trying to parse Legalese, one approach is to boil down the language
and remove as much fluff as you can, until it makes some sense.  Then
gradually add back a piece at a time, and make sure those pieces don't
invalidate your understanding.  That process looks something like this:


*"No Party shall require source code as a condition for the sale of
products in its territory."*

So, at it's core, this clause prevents the Party from requiring you hand
over the source if you want to sell your product in their country.  Note
that's Party with a capital P, meaning the Governments who are signing the
treaty.  That doesn't mean you aren't able to hand over the source if you
want to, or as a condition of your willingness to sell, nor does it mean
you as a copyleft holder can't require others to agree to be bound by
whatever license agreement you craft.  It only constrains the Party.

So, let's add back in some more words:

"No Party shall require source code of *software owned by a person of
another Party*, as a condition for the sale of products in its territory."

This addition clarifies who the governments can't restrict the rights of,
namely citizens of countries who also signed the TPP.  If your country
didn't sign the TPP, you're excluded by that phrase.  So... onto some more
words:

"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 sale of products in
its territory."

They clarify that the governments can't require you give them access to it,
even if they don't require you actually give it to them.  This closes the
clever loophole of "You don't have to give us the source code, but you have
to let our guy come over to your office and read and memorize it for 6
months before you can sell it here."

More words, please!

"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."

These last few words just further expand the list of things the Party can't
restrict (import, *distribution*, and use), and clarifies that they're only
talking about software products, not all products.

So, now it's your turn.  Does the following giant run-on sentence now make
sense to you?

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.

One last test... Did any of that invalidate our original understanding?  I
thought about it for a few moments, and I see one interesting problem.  This
adds a constraint on the Party, which prohibits them from requiring members
of another party to give them source code, as a condition of distribution.
That's essentially what the GPL does, it require that if you distribute
software, you have to give away the source code.  So, if TPP governments
aren't allows to constrain citizens of TPP governments in that way, those
governments can't legally contribute to projects which have a GPL style
license.

If your license doesn't require you to give up the source of subsequent
modifications, only requires you to give credit where it's due (Apache/BSD
style), that's something the government can contribute to.

A TPP government *might* be able to contribute to a GPL project by
releasing their update in the public domain.  I'm not particularly well
versed in how those two licenses would interact, but basically the
government can read, use and modify GPL code to their heart's content, they
just can't distribute it.  Thus, they couldn't update it and publish (read:
distribute) the full set of the original software with their updates.  They
could publish the patch they wrote (which is by definition code they wholly
own, not encumbered by the GPL) into the public domain, meaning without
restriction, then the original maintainer can take that patch, incorporate
it into the original codebase, and release it under the GPL.

Since the TPP is framed as a trade agreement, designed to affect what a
country can and can't place import restrictions on, that's what I focused
my initial breakdown on.  Unfortunately, in trying to expand it to prevent
loopholes like "sure, you can import it, but you can't use it unless you
give us the source", they inadvertently made it incompatible with the
strange licensing constraints that make copyleft work.  IANAL (I am not a
legislator), but I don't see a clean way to fix that problem, while
maintaining the strength of the protection for closed-source software
companies.  Fortunately, because of the legal workaround in the previous
paragraph, it doesn't seem like a big deal.

Just to reiterate, this doesn't prevent anyone from importing into, or
using GPL software in, a TPP country, it only prohibits the government from
releasing code under the GPL license, because they can't require TPP
citizens to give up source to modifications they might subsequently make.

Aaron S. Joyner

PS - I resisted the urge to get into GPL vs. AGPL in the bulk of the
missive, but I can't resist it entirely.  Essentially, the 'distribution'
clause I highlight affects the GPL v2 and v3.  The AGPL is tripped up by
both the 'distribution' *and* the 'use' clauses.  For more on why, check
out the AGPL.