🚀 go-pugleaf

I just got hold of what I think is the latest ITAR from the Federal
Record, in electronic form (Compu$erve really is useful).  If anybody
would like a copy of the whole thing, please send me e-mail and I'll send
you a copy (it's 225 KBytes).

I've extracted verbatim what I think provides convincing evidence that
public domain software is not subject to the export controls of these
regulations.  This extract is attached at the end of this e-mail.

My premise is based on:

	1) The definition of public domain includes software
	   available via anonymous ftp in the U.S., under
	   the provisions of 120.19.  If you really want to quibble
	   you might argue that anonymous ftp doesn't fit the definition
	   of a library in 120.19 (4).  You could also quibble that
	   anonymous ftp is like an "exhibition", "generally accessible
	   to the public", 120.19 (6).  You'd have a hard time getting
	   reasonable people (and lawyers <smile>) to assert that
	   public domain software available via anonymous ftp doesn't fit
	   the definition of 120.19.

	2) Technical Data encompasses software. see 120.23 (c)

	3) Department of State export controls on Technical Data do not 
	   apply to Technical Data in the public domain. see 125.1, 125.2.

It seems crystal clear to me that no software available via anonymous ftp
is subject to the provisions of of the Defense Trade Regulations, formerly
the International Traffic in Arms Regulations (ITAR).

Regards,
Ed Hamrick

--------------------------------------------------------------------------

Extracts from "Defense Trade Regulations" from Federal Record, March 26, 1992

  (formerly International Traffic in Arms Regulations, or ITAR)

Sec. 120.19 *Public* domain.

    *Public*  domain  means  information  which  is  published and which is
generally accessible or available to the *public*:

    (1) Through sales at newsstands and bookstores;

    (2)  Through  subscriptions  which are available without restriction to
any individual who desires to obtain or purchase the published information;

    (3)  Through  second  class  mailing  privileges  granted  by  the U.S.
Government;
    (4)  At  libraries  open to the *public* or from which the *public* can
obtain documents;

    (5) Through patents available at any patent office;

    (6)  Through  unlimited distribution at a conference, meeting, seminar,
trade  show  or  exhibition,  generally  accessible to the *public*, in the
United States;

    (7) Through *public* release (i.e., unlimited distribution) in any form
(e.g.,  not  necessarily in published form) after approval by the cognizant
U.S. government department or agency (see also Sec. 125.4(b)(13)).

Sec. 120.23 Technical data.

    Technical data means, for purposes of this subchapter:

    (c)  *Software* as defined in Sec. 121.8(f) directly related to defense
articles;

Sec. 125.1 Exports subject to this part.

    (a)  The  export controls of this part apply to the export of technical
data and the export of classified defense articles. Information which is in
the  ''*public* domain'' (see Secs. 120.19 and 125.4(b)(13)) is not subject
to the controls of this subchapter.

Sec. 125.2 Exports of unclassified technical data.

    (a)  General.  A  license (DSP-5) issued by the Office of Defense Trade
Controls  is required for the export (and return to the U.S. if applicable)
of  unclassified  technical  data  unless  the  export  is  exempt from the
licensing  requirements  of  this subchapter. If the unclassified technical
data  is  related to a classified defense article, any classified technical
data  or  defense articles that may subsequently be required to be exported
must  be described, along with the address and telephone number of the U.S.
Government  office  that classified the information. In the case of a plant
visit,  details  of  the  proposed  discussions  must be transmitted to the
Office  of  Defense  Trade Controls for an appraisal of the technical data.
Seven  copies  of the technical data or the details of the discussions must
be  provided. Only one copy must be provided if a renewal of the license is
requested.