>I think what it's really trying to say is, "You can't pass laws saying overseas companies have to share their source code if they want to sell software or SaaS in your country."
Your interpretation seems reasonable. I'm guessing OSIA
and the Linux Journal are interpreting it like this:
>No Party (e.g. GNU GCC) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. GCC), or of products containing such software (e.g. GCC), in its territory.
The "such software" is misinterpreted as referring back to a hypothetical "GCC" instead of "Atlassian".
Your interpretation would be more like:
>No Party (e.g. USA) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. Atlassian), or of products containing such software (e.g. Atlassian), in its territory.
If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.
> If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.
How is it ambiguous? The treaty contains a definition of "Party":
> Party means any State or separate customs territory for which this Agreement is in force;
To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state or a customs territory that signed the treaty.
>How is it ambiguous? The treaty contains a definition of "Party"
I'm guessing it's because "commercially negotiated contract" in subsection 3a seems to use another (inferred) meaning of "party" such as a commercial business and not a country. (Text is "a person of another Party".) So one side of that "contract" is not a country. (E.g. Microsoft Windows is not the USA.)
>To argue that this means that GNU cannot enforce the GPL would be to argue that GNU is a state
Since CPTPP is a trade agreement, maybe an analogy is the NAFTA trade agreement[1]. Even though Boeing is not a signatory on the treaty, the USA signed it so Boeing is prohibited from certain practices with Canada and Mexico. Although "party" is literally defined as "country", it applies to the businesses in within a country.
The text forbids parties (i.e., countries) from requiring source code disclosure as a condition of sale. It does not forbid persons (e.g., GNU) from requiring source code disclosure as a condition of sale. (It should be noted that it also doesn't forbid countries from tendering a contract proposal that requires source code disclosure in the contract).
I'm going a bit of a limb here in applying SCOTUS principles to how to read law, as we're not talking about US jurisdiction, but since Australia is also a common law country, I'd assume that the principles are basically the same. One basic principle of determining different interpretations is that you have to ask "is there a clearer way to write this interpretation?" If the intent of the treaty were to make copyleft unenforceable, the text included would be along the lines of "No party shall permit a person to require the disclosure of source code." Indeed, if you read some of the other articles in that chapter, there is actually text that says "No party shall require a covered person..." This does signal that there is intent that the text of Article 14.17 apply onto the government and not to the general public within a country.
I explained how SCOTUS would explain what the text means under the guideline of legislative intent (you'd probably arrive at the same conclusion under the principle of plain meaning). Legislative intent is explicitly trying to understand what a law means by understanding what the legislature intended it to mean, so whatever funky definition the OSIA and Linux Journal comes up is completely and totally irrelevant under that standard.
I don't know the jurisprudence of Australian law to understand how Australian courts would interpret the text, but I would honestly be surprised if OSIA's purported interpretation were accepted.
> "commercially negotiated contract" in subsection 3a seems to use another (inferred) meaning of "party" such as a commercial business and not a country. (Text is "a person of another Party".)
It's the same definition. "A person of another Party" is "a person from another country."
> Although "party" is literally defined as "country", it applies to the businesses in within a country.
What "it"? The NAFTA could certainly have requirements from signatory states to implement certain laws, and when such laws are implemented, of course they would apply to Boeing or any other US company. But I don't think NAFTA itself would apply directly.
My understanding (granted, second-hand from international copyright law experts) is that this is the correct interpretation: Microsoft does not want Chinese or Russian governments demanding the source code of Windows. I'm extremely skeptical of the Linux Journal's claims here.
As per usual in international trade agreements, this provision merely codifies the present status quo. There's no reason to expect that it will affect the GPL.
Here's how it will go down: China will steal GCC from GNU. Turns out the GNU people are really bad at guarding their Property. Then Russia steals GCC from China to demand ransom. Redhat will pay, it's their business after all. Bad times ahead I tell you...
Your interpretation seems reasonable. I'm guessing OSIA and the Linux Journal are interpreting it like this:
>No Party (e.g. GNU GCC) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. GCC), or of products containing such software (e.g. GCC), in its territory.
The "such software" is misinterpreted as referring back to a hypothetical "GCC" instead of "Atlassian".
Your interpretation would be more like:
>No Party (e.g. USA) shall require the transfer of, or access to, source code of software owned by a person of another Party (e.g. Australia Atlassian), as a condition for the import, distribution, sale or use of such software (e.g. Atlassian), or of products containing such software (e.g. Atlassian), in its territory.
With that interpretation, the text is a response against China and Russia demanding source code from USA and European tech companies. E.g. https://www.google.com/search?q=china+russia+import+share+so...
If so, the worry would be whether countries would use the ambiguous wording of CPTPP as a way to ignore copyleft. Ignoring GCC's license wasn't the intention but it becomes the side effect. Organizations like GNU don't have an army of expensive lawyers to fight companies in Australia, etc. I have no idea if this "abuse" of CPTPP is a realistic concern.