The treaty specifically states a party cannot compel the owner to reveal the source code. Arguably someone violating the GPL or similar license is not the actual owner of the code.
"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."
It does not say no party can compel an owner, it says no party can compel access to the source code owned by person of another party. That is not "no party can compel the owner" it's "no party can compel access to source code that meets certain conditions".
Period. There is no "nobody can compel the owner" part in there that i see.
The only reference to ownership is around a pre-req to compulsion. IE if you break it down, it says:
"unless the software that meets the following conditions, you can't compel access to code
Conditions:
A. It's owned by a citizen of the party
or
B. It's not being done as a condition for the import, distribution, sale, or use of such software, or products containing such software, in its territory"
It would essentially mean software authors could not enforce their copyright against infringers in other party nations if proving infringement required access to the author's or infringer's source code.
Of which part.
I think the part about whether you can compel an owner is cut and dry. It says nothing about compelling owners. Period.
The part about countries being able to make laws about import/export, also very cut and dry. This is very clearly covered.
The part about countries not being able to have courts order source access, yes, is a broad interpretation, but honestly, not inconsistent with how this kind of wording tends to be read by courts.
Even if you cut the last part out, the other two are still very very worrying.
I was going to argue that, but after thinking about it realized I was making the incorrect assumption that the owner of the source code was the only one who could provide said code. Hence my incorrect interpretation.
> The part about countries being able to make laws about import/export, also very cut and dry. This is very clearly covered.
Not challenging that.
> The part about countries not being able to have courts order source access, yes, is a broad interpretation, but honestly, not inconsistent with how this kind of wording tends to be read by courts.
If that is the case, I don't see how any state with a decent technology sector would agree to it, because it would allow party states to basically set themselves up as piracy safe havens.
> Even if you cut the last part out, the other two are still very very worrying.
I don't think the first is worrying at all without the third. To try to extend the meaning of the first to include legal actions taken in copyright infringement cases would be tantamount to scuppering the very protections other parts of the same treaty are trying to enhance.
So you can't (seemingly) require FOSS to access the market at all, but you could compel someone to reveal source for any number of other reasons.
I still don't see how the State would be involved here though...
IE If i get a federal judge to order source code access, do you think I did it, or instead that a party (IE US) just compelled access?
(Hint: The law mostly says the latter ;p. That's why i can get law enforcement to enforce it. Because it's an order of the government, not an order of me)
Now, whether it meets the other conditions for the "no compulsion" part, that depends on the circumstances.