Posted by Clif Burns at 8:16 pm on February 26, 2008
Category: 
After yesterday’s post on the acquittal in the Axion case, I decided to dig deeper to find out more about the drawing of the bifilar weight assembly that was exported to China and which was the basis of the prosecution. The defense claimed that the drawing was available on the Internet and was therefore public domain technical data not subject to licensing requirements. I wondered why, if that were the case, the prosecution was brought in the first place. The judge did not issue a written opinion in connection with the acquittal so I consulted the prosecution’s trial brief to get a better view of the evidence.
So, was the drawing that was exported available on the Internet? The answer appears to be “yes and no.” First, with a little more snooping around I did find schematics of the bifilar weight assembly, as you can see from the picture above this post. And, as you can see from the drawing, it appears to be, notwithstanding the imposingly technical name, a rather simple part.
Second, and here’s the rub, it doesn’t appear that the exported drawing itself was available on the Internet. Rather it seems to have been a drawing made by an Axion engineer based on one of the publicly available schematics.
Here’s the relevant section from the prosecution’s trial brief:
In September 2003, Latifi asked James Hopkins to edit the technical drawings for the bifilar weight assembly. Hopkins extracted information from the technical drawings and used a computer-aided design program to redraw the drawings. While working at Axion, Hopkins observed a brochure from a Chinese manufacturer for tungsten parts, which is the material used to make the bifilar weight assembly. Hopkins advised Latifi that the drawings might be subject to the export control laws. Latifi told Hopkins that it seemed too complicated to export the technical drawings outside the United States; instead, Latifi advised Hopkins that he would only distribute them to domestic companies.
This makes it easy to see the substance of the dispute between the prosecution and the defense. The drawing itself wasn’t literally available on the Internet, but if Hopkins didn’t make any material changes in the drawing, there’s also a sense in which it was available on the Internet. If, for example, Hopkins simplified a publicly-available drawing, would that make the revised drawing subject to export controls? And consider these questions in the context of a schematic for a part that is admittedly a rather simple mechanical part.
It seems to me that the judge in acquitting Axion and Latifi eschewed the literal notion that the drawing in question must have been available on the Internet rather than simply have been based on a drawing available on the Internet.
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In intellectual property law, the Hopkins drawing would be considered to be a “derivative work”, sort of like an abridged version of War and Peace, i.e., a subset of the information conveyed by the original work. I respectfully suggest that for the purposes of determining whether the drawing was in the “public domain” within the meaning of 120.11, the question is not whether the Hopkins drawing itself was published or “generally accessible to the public”, but whether the “information” contained in or conveyed by the drawing was. ITAR 120.11(a) uses the term “information”. The prime rule of statutory construction is that in the absence of a defined term, words in a law are given their plain and ordinary meaning. By using the term information, without limitation or published interpretations limiting its definition, DDTC has not limited the definition of information in the public domain to exact reproductions of existing documents, but includes any information contained or extracted from the original work.
Comment by Mike Deal — February 27, 2008 @ 8:15 am