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A comment on Copyleft terms may become unenforceable in 11 countries due to the CPTPP. Parent comment

Re:Copyleft terms may become unenforceable in 11 countries d... by bdowling on Thursday June 14, 2018 @07:36PM (#17316310)
There's nothing to see here. "Party" (capitalized) and "person of a Party" have specific meanings in this document, as defined in the definitions section:

"Party means any State or separate customs territory for which this Agreement is in force;"

"person of a Party means a national or an enterprise of a Party;"

(Chapter 1, Section A, Article 1.3, [0])

So the statement "No Party shall require the transfer of..." restricts what a State that signed the treaty may do to the persons and enterprises of another State. For example, China can't require Microsoft to disclose its source code as a condition to selling Windows in China.

Regarding the other quote about contracts, the operative part is "Nothing in this Article shall preclude". So this treaty has no effect on terms regarding source code in commercially negotiated contracts. Even if you are of the misguided belief that FOSS licenses are contracts, this provision does not affect them.

Finally, FOSS licenses are not contracts because they do not contain bargained-for reciprocal promises. They are grants of rights, subject to terms and conditions. A FOSS license operates as a defense against copyright infringement. If the terms and conditions are not met, then the license is void. The infringer can then be sued for copyright infringement, not breach of contract. This has two important implications: (1) a court won't order specific performance (a contract remedy) in a case of copyright infringement, and (2) a third party has no standing to sue, because where there is no contract there can't be a third-party beneficiary (only the rights-holder may sue).

[0] http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/...

(Edit: Clarified lack of breach of contract claim.)

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Re:Copyleft terms may become unenforceable in 11 countries d... by slavik81 on Friday June 15, 2018 @01:28AM (#17317696)
I don't think it really changes anything, but there have been cases where the GPL has been considered a contract. https://perens.com/2017/05/28/understanding-the-gpl-is-a-con...
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Re:Copyleft terms may become unenforceable in 11 countries d... by bdowling on Friday June 15, 2018 @03:09AM (#17318015)
No. Even in that case, the GPL wasn’t considered a contract. There was an open offer to anyone, essentially, “If you’d like to use this software, either buy a commercial license or abide by the terms of the GPL.” The defendant accepted the offer by using the software and proclaiming that it would meet the terms of the GPL. That offer and acceptance created a contract. So, the GPL wasn’t the contract itself, but provided the terms for the offeree’s performance.
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Re:Copyleft terms may become unenforceable in 11 countries d... by bdowling on Friday June 15, 2018 @12:16PM (#17320920)
To be a bit more accurate, the judge’s decision was only on a motion to dismiss. So, he didn’t actually decide that there was a contract, he decided that if you assume that plaintiff’s assertions are true, then there could have been a contract. That allows the case to continue.
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Re:Copyleft terms may become unenforceable in 11 countries d... by slavik81 on Friday June 15, 2018 @01:40PM (#17321783)
The other linked case, MedioStream v. Microsoft, doesn't seem to be based on any other offer. It's also a denial of a motion to dismiss, though.
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