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- Xref: sparky sci.crypt:6660 alt.security.ripem:100
- Newsgroups: sci.crypt,alt.security.ripem
- Path: sparky!uunet!shearson.com!snark!pmetzger
- From: pmetzger@snark.shearson.com (Perry E. Metzger)
- Subject: Re: Complete ITAR Available
- Message-ID: <1993Jan11.211324.15831@shearson.com>
- Sender: news@shearson.com (News)
- Organization: Partnership for an America Free Drug
- References: <1993Jan10.215609.3109@convex.com> <1993Jan11.003432.15501@netcom.com>
- Date: Mon, 11 Jan 1993 21:13:24 GMT
- Lines: 85
-
-
- 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.
-