Comments on: New De Minimis Rules Are Still De Maximis Headaches http://www.exportlawblog.com/archives/401 Latest News on DDTC, BIS, OFAC, and other export law matters Thu, 09 Sep 2010 18:58:42 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Marion R. http://www.exportlawblog.com/archives/401/comment-page-1#comment-21073 Marion R. Wed, 19 Nov 2008 11:10:10 +0000 http://www.exportlawblog.com/?p=401#comment-21073 After studying the exact wording of the new regulation, I'm surprising of the new "incorporated" definition, which introduces the concept of "essential to the functioning of the foreign equipment”. What is the meaning of that? Is a US component non essential to the functioning of an aircraft (2d inertial aircraft equipment for example) excluded of scope of the de minimis? Is the foreign integrator compelled to apply for an individual licence? What is the De minimis interest for the industry? After studying the exact wording of the new regulation, I’m surprising of the new “incorporated” definition, which introduces the concept of “essential to the functioning of the foreign equipment”. What is the meaning of that? Is a US component non essential to the functioning of an aircraft (2d inertial aircraft equipment for example) excluded of scope of the de minimis? Is the foreign integrator compelled to apply for an individual licence? What is the De minimis interest for the industry?

]]> By: Mike Deal http://www.exportlawblog.com/archives/401/comment-page-1#comment-20597 Mike Deal Thu, 02 Oct 2008 16:40:34 +0000 http://www.exportlawblog.com/?p=401#comment-20597 The new de minimis rules still fail to address the special unique problem of open source software that is shared by an entire community of users situated the world over through an open license (such as "Gnu" license which governs use of LINUX) in which the original authors grant a free license to use the sourcecode provided that the users posts his derivative software sourcecode and grants back an open license to other users/developers. The open source community has actually found open source software to be profitable and viable alternative to proprietary software systems such as Microsoft(R) that require users to pay for software licenses, and courts have held the Gnu and other open source software licenses to be fully enforceable. Because open-source operating systems contain an encryption module, BIS regards them as "subject to the EAR", often under 5D002, even though they would otherwise be considered to be publicly available. While they might be eligible for license exception TSU, this makes them ineligible for export to embargoed countries. Given that anyone can copy and develop open source software as long as they follow the cross-license conditions, determining the US content of open source products can be nightmarishly difficult and pretty much pointless, given the availability of the Internet. There are over 100 registered Linux developers in Tehran. The new de minimis rules still fail to address the special unique problem of open source software that is shared by an entire community of users situated the world over through an open license (such as “Gnu” license which governs use of LINUX) in which the original authors grant a free license to use the sourcecode provided that the users posts his derivative software sourcecode and grants back an open license to other users/developers. The open source community has actually found open source software to be profitable and viable alternative to proprietary software systems such as Microsoft(R) that require users to pay for software licenses, and courts have held the Gnu and other open source software licenses to be fully enforceable.

Because open-source operating systems contain an encryption module, BIS regards them as “subject to the EAR”, often under 5D002, even though they would otherwise be considered to be publicly available. While they might be eligible for license exception TSU, this makes them ineligible for export to embargoed countries.

Given that anyone can copy and develop open source software as long as they follow the cross-license conditions, determining the US content of open source products can be nightmarishly difficult and pretty much pointless, given the availability of the Internet. There are over 100 registered Linux developers in Tehran.

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