The Trans-Pacific Partnership and free software

The proposed Trans-Pacific Partnership agreement (TPP) is a free-trade agreement negotiated by a number of countries that comprise approximately 40% of the global economy. Its stated purpose is to reduce barriers to international trade. A number of public-interest groups have raised concerns about the TPP; for example, the Free Software Foundation has expressed concerns about software freedom in imported consumer devices under the agreement. While some of the concerns that have been aired are more realistic than others, the agreement as a whole is indeed worrisome.

The problematic sections include Article 14.17, which directly mentions source code, Article 18.63, which extends copyright duration in many countries, Article 18.68, which deals with Technological Protection Measures, and Chapter 28, which provides that non-compliant signatory governments can face arbitration against (and a potential damage payout to) a complaining corporation.

The FSF's worries center around Article 14.17, which begins with:

However, this restriction is greatly limited according to the following section, which states that this restriction on government power "is limited to mass-market software or products containing such software and does not include software used for critical infrastructure". The clause is further watered-down by another article in the TPP, which specifically notes that government procurement is excluded from the application of this article.

Section 3(a) of the article states "commercially negotiated contracts" are another exception to the restrictions of this article. Copyleft licenses, however, are not contracts; Eben Moglen stated this in 2001 in an essay published by the FSF. Some worry that Section 3(a) may thus make copyleft unenforceable in TPP signatory states. However, copyleft-enforcement litigation is not affected by this section and would thus remain the same under the TPP.

In particular, this article refers to prohibitions on compelling source code release, but a copyleft enforcer will completely sidestep this issue by focusing entirely on copyright law itself. Should, say, an imported smartphone not come with source code for its GPL-licensed software, nor an offer for such source code, the copyleft enforcer would argue that the company producing the smartphone is not in compliance with copyright law, and can either choose to disclose source code or lose its rights to use, modify, and redistribute the software. As has been the standard approach for copyleft enforcement in the past and present. (See this post on the Software Freedom Conservancy site for more on license enforcement).

Nonetheless, this article remains a concern, because governments would be unable to require source code disclosure for any class of imported mass-market, consumer devices. Imported routers, personal health care devices (such as blood-testing devices for diabetics), and, to think of a recent example, embedded automotive software could not be required to come with source code.

Article 18.63, which extends copyright duration by 20 years in countries like Canada, has been rightly criticized by a number of academics as harming the economy and stunting the growth of the public domain. In an article published earlier this month, Canadian law professor Michael Geist notes that this clause is projected to cost Canadians "hundreds of millions" of dollars in lost savings on artistic works in addition to impoverishment of the artistic commons.

Turning to Article 18.68, all parties to the agreement would be required to implement strong penalties for digital rights management (DRM) circumvention, including the manufacturing, importing, and distributing of circumvention tools. One clause states: "Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities." For those DRM-circumvention offenses that don't lead to criminal penalties, individuals would face civil penalties and the liability to pay potentially high damage awards to the rights holder. However, governments would also be given the option to grant exceptions to these penalties "in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law". These exceptions could be codified in copyright law: for example, Section 1201 of the United States's Digital Millenium Copyright Act already specifies a few exemptions from the prohibition on DRM-circumvention, including encryption research.

Despite this potential mitigating clause, this entire article is problematic for open-source software developers and for Linux distributions. For example, the libdvdcss library, which allows playback of encrypted DVDs on Linux systems, could not be packaged for a commercial Linux distribution in a TPP state, and potentially not on any Linux distributions at all. While Debian, Fedora, and Ubuntu do not include libdvdcss, niche distributions like Puppy Linux and XBMC Live (who may feel that they can get away with it as they're small, non-commercial projects) as well as the popular Linux Mint do. Including one of those distributions in a Linux live DVD included as a promotion with a Linux magazine could lead one to potential criminal liability. This article further excludes the open-source world from enjoying media locked behind encryption and digital restrictions by codifying those restrictions and forcing them on a large part of the global economy.

Also troubling as a whole is Chapter 28, the "Dispute Settlement" chapter. This provides for penalties, including monetary damages, for signatories who do not adequately implement the TPP. A corporation can bring a signatory government in front of an arbitration panel to seek these penalties and a damage award. This type of dispute resolution process has been criticized by non-profit organizations such as the Council of Canadians for allowing "transnational corporations to challenge democratically-elected national governments and be paid compensation if public interest legislation is passed that affect future corporate profits."

While the above articles remain problematic, it's important to keep in mind that this agreement remains a proposal. Countries would still have to sign it, ratify it, and make changes to their domestic legislation to implement this agreement. However, there is not much time left for Americans to oppose the bill. President Barack Obama was given fast-track authority this past June to accelerate the implementation of TPP. There are now less than ninety days before this bill could be ratified by Congress. With the United States being the major force behind the TPP, its ratification of the agreement would virtually guarantee the other parties would follow step, leaving 40% of the world's economy bound by its problematic clauses.