IP: One more on new encript regs

[farber () cis upenn edu <farber () cis upenn edu>]

----Original Message-----
From:           "Baker, Stewart" <SBaker () steptoe com>
To:             "'farber () cis upenn edu'" <farber () cis upenn edu>
Cc:             "Albertazzie, Sally" <SAlbertazzie () steptoe com>
Subject:        RE: Twp on New Encryption Regulations
Date:           Thursday, January 13, 2000 9:36 AM

Dave,

I'm pleased to say that Brett Glass's interpretation of the new regs and
public source is too narrow.  The new regulations permit source code subject
to the GPL to be freely exported.  This issue was considered extensively by
the government in drafting the new regulations.  The regulations deal with
the issue explicitly by stating:  

"Intellectual property protection (e.g., copyright, patent or trademark)
will not, by itself, be construed as an express agreement for the payment of
a licensing fee or royalty for commercial production or sale of any product
developed using the source code."

So using IP to restrict commercial development does not push source code out
of the regulations' favorable export treatment, at least as long as the IP
is not used to require royalty payments.

Stewart Baker
Steptoe & Johnson LLP
phone -- 202.429.6413
email fax -- 202.261.9825
main fax -- 202.429.3902
sbaker () steptoe com



-----Original Message-----
From: Dave Farber [mailto:farber () cis upenn edu]
Sent: Thursday, January 13, 2000 5:48 AM
To: ip-sub-1 () majordomo pobox com
Subject: IP: Twp on New Encryption Regulations



> X-Sender: alan () mail cdtmail org
> Date: Wed, 12 Jan 2000 23:10:34 -0500
> To: farber () cis upenn edu
> From: Alan Davidson <abd () cdt org>
> Subject: Re: IP: New Encryption Regulations
>
> Hi, Dave -- I'm getting a lot of feedback on my earlier note, and would be 
> grateful if you might mention in any future posting on the subject that we 
> do believe this is a big step forward for privacy. Our #1 privacy 
> yardstick for assessing the crypto regs is whether consumers all over the 
> world can get good crypto built into the products and systems they use 
> everyday. Using that metric, the new regs will make it a lot easier to 
> export strong crypto in consumer products and clearly advance the ball for 
> privacy. They don't resolve every problem, but they are a big shift away 
> from prior policies embracing bit length limits and key escrow. Thanks,

Date: Wed, 12 Jan 2000 20:06:48 -0700
To: farber () cis upenn edu, ip-sub-1 () majordomo pobox com
From: Brett Glass <brett () lariat org>
Subject: Re: IP: New Encryption Regulations
Cc: Alan Davidson <abd () cdt org>


At 07:41 PM 1/12/2000 , Alan Davidson wrote:
* Source code that is "not subject to an express agreement for the payment 
of a licensing fee or royalty for commercial production or sale of any 
product developed with the source code" is freely exportable to all but the 
T-7 terrorist countries.

Interesting. The way I read this, encryption source code licensed under a 
license such as the "MIT X license," "BSD license," or "Artistic License" 
can be exported, because no license fee or royalty is required when one 
developes commercial software based on such code. But code licensed under 
the GNU General Public License (GPL) would not be exportable, because the 
license restricts the development of a commercial product based on the code.
Hopefully, this will encourage open source authors to eschew the GPL and 
its restrictions in favor of the other, more free licenses, which do not 
prevent commercial reuse of open source.
--Brett Glass