From: em21@cunixf.cc.columbia.edu (Eben Moglen)
Subject: Re: PKP/RSA comments on PGP legality
Reply-To: em21@cunixf.cc.columbia.edu (Eben Moglen)
Organization: Columbia University
Date: Thu, 17 Dec 1992 15:04:09 GMT

I have been following with interest, and distress, the conversation
about legal risks in using PGP set off by Carl Ellison's posting of
a document said to reflect the legal position of PKP.  Perhaps a
Columbia Law professor's views on these questions may be helpful.  I'm
going to discuss the realities of the situation, without jargon,
rather than the legal technicalities.  Those who want to discuss the
legal detail should feel free to contact me, but for legal advice I
usually get paid.

PKP says that any user of PGP is "inducing" infringement.  Here's the
reality of the situation.  PKP is the licensee of a presumptively
valid US patent, which it claims PGP 2.1 infringes.  If the patent is
valid, and PGP infringes, every user is not just inducing
infringement--he/she/it is infringing the patent.  This is not a
crime; it's a civil wrong, for which, as the PKP statement says,
damages are available at law.  But this is true every time a
manufacturer sells or distributes an infringing article.  As you may
recall, for example, an inventor recently won an enormous damages
judgment against a major US auto company for infringing his patent for
intermittent windshield wipers.  Theoretically, under the patent law,
he could instead have notified all Ford buyers in the past decade that
they were personally infringing his patent.  But it is grossly
impracticable to do that, and a suit against the manufacturer
accomplishes exactly the same result, since the total amount of the
damages available is the same either way, while the litigation cost is
not.  PKP can test the validity of its patent and recover its damages,
if any, in a suit against the developers and distributors of PGP, if
it cares to.  Without any knowledge of their thinking, I predict the
partners won't want to do that.  It would be expensive, the damages to
be recovered would be slight or none, and they would risk having the
only patent anywhere in the world protecting their technology declared
invalid.  But in any event, it is virtually unheard-of to sue
individual end-use consumers of allegedly infringing technology.  If
PKP's investors had $100 million or so they wanted to waste in
litigation anything could happen, but they don't, and it won't.

In any event, in such a situation a lawyer certainly might advise her
client to wait for the patent-holder to assert his rights directly. 
When PKP sends you a personal letter claiming that you are infringing
its patent, and asking you to take out a license, you can decide what
you want to do about it.  In the meanwhile, the patent claim against
end users is mostly, probably entirely, just noise.

The Munitions Act bluster contained in the post is not even that
important.  It's just ridiculous.  Others have said some of the most
important things well, so I'll be brief.  First, even if PKP believes
its own arguments interpreting the ITARs, PKP doesn't have squat to do
with ITAR enforcement.  This is a question addressed to the discretion
of the Treasury, the Department of Justice, and local United States
Attorneys.  ITAR enforcement against distributors of PGP would require
a decision by all those agencies that the highest-priority Munitions
Act enforcement problem at some future moment is the prohibition of
IMPORTATION of a CONSUMER SOFTWARE PRODUCT embodying TECHNICAL
INFORMATION IN THE PUBLIC DOMAIN.  I challenge PKP, or anyone else, to
show any past example of such an approach to ITAR enforcement by any
Administration.  I cannot myself imagine any United States Attorney's
office wanting to bring such a case, which is of nightmarish
complexity, would be politically unpopular, and does nothing whatever
to stem the global arms trade or increase the national security of the
US.  I very much doubt that PKP really believes that the domestic
circulation of PGP violates the ITARs, since PKP itself terms as
"unfortunate" the application of the Munitions Act to cryptographic
technology.  But even if that's really what PKP or its officers
think, so what?  The chances that the United States Government will
ever agree, and put weight behind agreement, are within fuzz of zero.

UseNet serves many social purposes.  One, apparently, is the no-cost
distribution of negative advertising and legal chest-pounding,
intended to frighten people away from experimentation with a piece of
interesting freeware.  Myself, I would just put the PKP temper tantrum
in the bitbucket.  But since other people have taken it seriously
(much more seriously than it deserves) I thought a few more sober
comments might be warranted.
_______________________________________________________________________________
               Fiat Justitia,         "Quoi que vous fassiez, ecrasez l'infame,
                ruat Coelum.                           et aimez qui vous aime."
 Eben Moglen                       voice: 212-854-8382
 Professor of Law & Legal History    fax: 212-854-7946          moglen@lawmail.
 Columbia Law School, 435 West 116th Street, NYC 10027          columbia.edu
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