Subject: Re: GNU and classified software
From: Ben_Tilly@trepp.com
Date: Tue, 27 Mar 2001 09:46:06 -0500


Frank Hecker wrote:
> Norbert Bollow wrote:
> > So under your interpretation of the GPL, the NSA has the right
> > to distribute "classified GPL'd software" to whoever they like
> > while at the same time restricting the recipient of this
> > "classified GPL'd software" from distributing the software
> > further?
>
> It is not the NSA itself that is restricting the distribution, it is US
> government laws and egulations. (If it's confusing to think of the NSA
> as distinct from the US government in this context, imagine a situation
> where a government contractor creates classified software and
> distributes it to another US government contractor.)

Why does that matter?

> This is exactly analogous to the former situation in the US with regard
> to encryption software. Prior to the US government export control
> regulations being changed (say, back in 1999) a US citizen and resident
> could create software implementing an encryption algorithm (DES, RSA,
> whatever), license it under the GPL and distribute it to another US
> resident; however the recipient of the software would be prohibited from
> redistributing that software to further persons, if those persons were
> not in the US (or Canada). That restriction was not imposed by the
> creator of the software, it was imposed by US government laws and
> regulations relating to encryption software.

IANAL but please explain how section 7 of the GPL is consistent with
this.  If you are prevented from distributing except to people who
may not in turn distribute however they want, then you are not allowed
to distribute at all.  Or at least that is how I read it.

> > However the GPL is also designed to be incompatible with
> > some types of licenses.  I would say that "This is classified
> > software and you are hereby given security clearance to have
> > it" is a GPL-incompatible software license.
>
> I think there is confusion here between a license and an overriding law
> or regulation. Prior to 2000, if I said, "This is encryption software
> developed in the US, and you must be a US citizen or resident to have
> it", that doesn't change the license, it just specifies that additional
> laws and regulations apply over and above the license.

I am not confused.  I am of the belief that the additional
regulations when combined with the terms of the license forbid
distribution at all.

The pertinant section starts:

    7. If, as a consequence of a court judgment or allegation of patent
  infringement or for any other reason (not limited to patent issues),
  conditions are imposed on you (whether by court order, agreement or
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
  otherwise) that contradict the conditions of this License, they do not
  excuse you from the conditions of this License.  If you cannot
  distribute so as to satisfy simultaneously your obligations under this
  License and any other pertinent obligations, then as a consequence you
  may not distribute the Program at all. [...]                       ^^^
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

(My emphasis.)

Cheers,
Ben