Today, I’ll be writing something different from my usual distribution reviews. In this article, I’ll give a brief overview of the Trans-Pacific Partnership (TPP), and discuss what it means for digital freedom, both in the case of free software and digital freedom of expression. Although the media isn’t reporting on this topic very much, I think this bill will affect our lives in significant ways, particularly for those involved in the Free Software community.
What is the Trans-Pacific Partnership?
The Trans-Pacific Partnership is a new trade agreement drafted on October 5, 2015 after seven years of negotiations. Partner countries include Brunei, Chile, New Zealand, Singapore, Australia, Canada, Japan, Malaysia, Peru, the United States, and Vietnam. According to the BBC, the agreement aims at “deepening economic ties between these nations, slashing tariffs, and fostering trade to boost growth.” Its proponents argue that it will increase economic growth between partner countries, while its many critics fear that it will harm the freedoms that citizens of the world have enjoyed in the past decade.
What does it mean for free software?
The TPP contains many concerning provisions concerning free and open-source (FOSS) software. Article 14.17 of the TPP contains this text:
1. 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.
2. For the purposes of this Article, software subject to paragraph 1 is limited to mass-market software or products containing such software and does not include software used 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
(b) a Party from requiring the modification of source code of software necessary for that software to comply with laws or regulations which are not inconsistent with this Agreement.
4. This Article shall not be construed to affect requirements that relate to patent applications or granted patents, including any orders made by a judicial authority in relation to patent disputes, subject to safeguards against unauthorised disclosure under the law or practice of a Party.
Note that “party” refers to a government that signs the document, not individuals like you or me. However, this provision, without any known rationale, forbids governments from requesting access to source code of any mass-market software (such as Microsoft Office) considered for import into its territory, for government or civilian use. This is especially troublesome in light of the recent Volkswagen scandal, where engine control software detected emission monitoring devices and reported a false mileage result. If a TPP-signing country buys software from another country, it is powerless to independently inspect the software for malware or spyware from the origin country.
The TPP also extends DMCA copyright laws to countries that sign the document. The DMCA was already opposed by many organizations in the United States, such as the Electronic Frontier Foundation (EFF), for provisions that restrict free speech. It allows copyright holders to remove web-pages that supposedly infringe copyright without an official hearing in court. Article 18.68 treats reverse-engineering and circumvention of digital locks (DRMs) as punishable offenses, with hefty fines, legal fees, and even prosecution as possible sentences for violators. This may be enough to outlaw the export or sale of devices such as the Libiquity X200, the first Respects Your Freedom (RYF) certified laptop sold in the United States.
As it stands, the TPP has not yet passed Congress. Both Republicans and Democrats oppose the bill in the United States. Democrats, such as Bernie Sanders and Hillary Clinton, are against it because it may result in further wage suppression, putting American workers at a disadvantage. While a majority of Republicans most likely support the fundamental provisions in the bill, there is still GOP opposition primarily on procedural issues. For these reasons, the TPP is unlikely to pass Congress easily, much less be signed by other countries. However, the bill, with all of its concerning provisions, bears watching for the next few years.
Sources include Time Magazine, BBC, the Electronic Frontier Foundation (EFF), Free Software Foundation (FSF), and the Software Freedom Conservancy.