From: pmetzger@snark.shearson.com (Perry E. Metzger)
Subject: Re: Complete ITAR Available
Organization: Partnership for an America Free Drug
Date: Mon, 11 Jan 1993 21:13:24 GMT


David Sternlight again confounds several issues.

strnlght@netcom.com (David Sternlight) writes:
>
>Ed Hamrick offers the ITAR in machine readable form, and I look forward
>to reading my copy. In the meantime, his summary conclusion that
>ftp-able material is o.k. under ITAR seems weak to me because
>the justification involves language like "published" and
>"released". I would argue that if someone uploads software that
>violates patents, etc. that act, which some might consider theft,
>is not included in the notions of "published" or "released".
>But that's a tentative conclusion--don't let's argue about it
>until I've had a chance to read the ITAR.

David;

The whole purpose of the ITAR is to try to distinguish that which a
spy would have a reasonable ability to get their hands on, and which
is thus beyond protection, and that which a spy would not have a
reasonable chance to get their hands on. All this requires is that the
information was released to the public. Now, so far as I can tell,
this is totally orthogonal to the question of the legality of the
release of the information itself. Irrespective of whether the
information was legally released, the fact that it was released means
that the horse is out of the barn and locking the door will no longer
keep it in.

>My point is that perhaps the law requires one to have the right
>to publish or release in order for the language quoted to apply.
>This is not yet a firm conclusion on my part, but should be read
>for now as an "uh, er," until I can read further. But I didn't want
>Ed's "conclusion" to stand undisputed.

Why should it matter if the horse was legally released from the
stable? Locking the door no longer will keep the horse in.

>Putting it another way, if PGP infringes, then the author does not
>have the legal right to declare it public domain, in that he doesn't
>own the infringing portion. To see this clearly, suppose I upload a
>copy of Microsoft Word and declare it public domain. Saying so doesn't
>make it so, and Microsoft could not only prosecute me, but also anyone
>with a copy.

Yes, but assuming that for some reason Microsoft Word was
non-exportable, having released it to the public in that manner (say,
publishing all the source code in a newspaper) might make me liable
for copyright infringement, but would also have the effect of totally
abrogating any secrecy associated with that information. In other
words, the question of copyright, patent, and other forms of
infringement is completely orthogonal to the question of whether the
export of some information is legal under the ITARs.

>Some have tried to argue that if they weren't the person uploading PGP
>originally, they could download and use it with impunity. As one can
>see from the above reduction ad absurdum, this cannot be or the only
>person Microsoft could go after would be the original uploader, but
>not those with copies of that upload. Worked examples include
>successful piracy prosecutions in the courts.

Ah, but lets consider the actual case at hand, shall we?

1) the person downloading software is downloading software that the
   author has copylefted, so he isn't liable for copyright violations.
2) the person downloading software is downloading software thats
   widely available to the public, so it is doubtful that a
   prosecution under the ITARs would work.
3) the person downloading software is possibly infringing a patent
   owned by public key partners. Presumably, they could sue, and get
   damages. Since a free version of the same software, more or less,
   has been sanctioned by public key partners, it would appear that,
   if their suit was successfull, they could not recover any money
   since no damages were caused to them -- the software that does not
   infringe being distributed by public key partners at no cost.

Overall, it would seem that David continues to harangue us for no
apparent reason. Thats ok, though. By letting him harangue us like
this, he is being kept off the streets, where he might see innocent
youngsters necking, which he would doubtless feel compelled to report
to the police.

--
Perry Metzger		pmetzger@shearson.com
--
Laissez faire, laissez passer. Le monde va de lui meme.
Newsgroups: sci.crypt