From: strnlght@netcom.com (David Sternlight)
Subject: Re: PKP/RSA comments on PGP legality
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Thu, 17 Dec 1992 21:59:01 GMT


Prof. Eben Moglen writes:

(law professor's opinion about "realities of situation" omitted)

Note that in no place does Moglen say use of PGP2.0 in the US. is legal. In no
place does he say one isn't violating the Munitions Act. He even concedes it's
a "civil WRONG" (emphasis added). What he says is that he thinks one is
unlikely to be prosecuted/sued.

This means the ethical position is still unchanged in this discussion. Using
PGP in the US. is wronging the patent holders and violating the Munitions Act.

Even for those who have no ethical concerns, suppose you were known to use it.
It might jeopardize your ability to pass the scrutiny needed to obtain
government employment, receive government research funds, or work on
government contracts if somebody, somewhere, has a note in a file about you
"violated Munitions Act." And you'd never know. Something to think about. Life
is long, government files last forever, and some of the Yippees of the '60's
now have government jobs.

Next he says "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."

Right. First, that seems to me to be ethically analogous to saying commit a
crime, and if the police catch you, then you can decide what you want to do
about it. Second, what if PKP decides you had adequate notice via, say, the
discussion here and elsewhere, and doesn't ask you to take out a license but
instead hits you with a lawsuit, gets some judge to put a lien on your
property (dunno if he can or not, but you get the point), or in some other way
makes your life vastly inconvenient. It isn't as simple as the Professor makes
it.

Then he says "I very much doubt that PKP really believes that the domestic
circulation of PGP violates the ITARs"

Over the years I've learned that when an attorney says something proceeded by
"I very much doubt" or similar language, he's winging it, not expressing a
statement of the law one can take to the bank. In any case unless the
Professor's mind reading abilities are rather more well developed than my own,
I doubt he knows what PKP believes.

Finally, the Professor discredits himself (in my view) by characterizing PKP's
attempt to protect their property rights as a "temper tantrum." At this point
I think he's revealed himself as a party at interest, and a biased one, rather
than a law professor dispensing dispassionate information from Olympus.

Be very careful.

In conclusion, what am I doing about all this? I've been in communication with
Jim Bidzos on a regular basis, to try to get him to appreciate the negative
impact on RSA's image all this is having, and to get him to consider some
mutually reasonable position. One such might be for him to accept, for
example, the Mailsafe fee (a special price he's made for "netters" of $50 as a
voluntary gesture on his part--the commercial price is much higher) as
liquidated damages for use of PGP, in return for rendering such use harmless
by individuals who pay the fee. Other possibilities also come to mind. He's
promised to think about it and consult with his attorneys.

My position is clear. RSA has patents on a wonderful invention and they are
entitled to the fruits of their work. To cheat them of those fruits is wrong,
regardless of the legal situation outside the US., or whether one will get
caught or not.

Now a word to my colleagues all over the world. Though you may be able to (or
think you may be able to) use PGP with impunity, why not voluntarily send RSA
a reasonable contribution for their invention--think of it as a shareinvention
fee analogous to a shareware fee. Say $20. A large number of such gestures
might change the context of the situation overnight. Note that this is my
personal suggestion, and I have not discussed it with anyone.

David