Feb
26
Redrawing Lines in the Axion Case
Posted by Clif Burns at 8:16 pm on February 26, 2008
Category: Criminal Penalties
ABOVE: Schematic of bifilar weight assembly for Black Hawk helicopters (
Source).
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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Copyright © 2008 Clif Burns. All Rights Reserved.
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8 Comments:
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.
Clif,
Are you suggesting that publicly-available information via the internet is the same as “public domain” under 120.11? DDTC and BIS are both fond of pointing out that internet availability is not the equivalent of a library and that exporters must be careful with the assumption that internet information is not controlled.
Ken
Ken, I almost added a paragraph on the argument that 120.11 doesn’t explicitly mention the Internet. BUT, it does say “available to the public . . at libraries open to the public” and most public libraries make an internet connection available to the public, although to comply literally with 120.11 only two “libraries” would need to do so.
People at DDTC (and BIS) may from time to time say to the public that the Internet isn’t public domain under 120.11, but I wonder if they’d have the nerve to make that argument in front of a federal judge. I doubt it would have gotten very far with the district court judge in the Axion case.
Mike, that the regulation refers to “information” in defining public domain is why I think the defense would have a better argument about the Hopkins than what appears to have been the argument of the prosecution in the Axion case.
One important point is that the drawing in issue was “extracted” “based on one of the publicly available schematics”. It has long been an established precept at the State Department that information “compiled” from information in the public domain is not necessarily itself public domain. (This stance doesn’t even address whether the information placed in the public domain was put there lawfully, an issue for another day, because while the EAR allows the erstwhile exporter to make that call, the ITAR does not.) Take the case of the Radioactive Boy Scout who compiled information in the public domain and used that information to make some pretty scary things; while not directly on point because he wasn’t exporting, the story is instructive for illustrative purposes nonetheless. http://www.dangerouslaboratories.org/radscout.html
Dear Sir,
I own a company that is a government contractor and
I followed this case and wanted to correct a misunderstanding that
> served as the basis of your analysis and was carried on to your mistaken
> conclusion. The drawings that were sent to China in this case
> were drawings made by James Hopkins and extracted from technical drawings
> that were sent to Latifi in the technical data package with the original
> solicitation. In other words, the government sent technical drawings of
> the part to Axion for the purpose of
> manufacturing the part. These drawings were sent directly to engineers
> in China, but they had problems or questions so James Hopkins was hired
> to redraw the original drawings taking out what was deemed to be
> unnecessary. The drawings were technical and
> definitely were not on the internet. Both the original drawings and the
> re- drawings, based on their content, were examined by the State Department and determined to be
> on the munitions list and therefore export controlled technical data.
>
> The drawings you display on your website and that are found on the internet, were not the drawings alleged to have been sent and the
> government did not allege that they were. Only the defense alleged that they were.
Anyone with experience in this field would immediately appreciate the fact that this part could not be produced with the drawings displayed on your website.
>
> See: http://www.timesdaily.com/article/20071027/NEWS/710270325
> and http://www.timesdaily.com/article/20071026/NEWS/710260316
>
>
Hope this is enlightening.
ETD
ETD, If you read my post carefully, you will see that I said that if the engineer who redrew the schematics made material changes to reflect proprietary data, they would become export controlled. So, indeed, if you have evidence or knowledge that such changes were made, I would agree that the re-drawing would have been subject to the ITAR.
Latifi first sent the original export controlled schematics to China, then later sent redrawn schematics. Even if there were doubt as to the redrawn schematics being controlled, there can be no such doubt with the originals. Latifi’s statement to Hopkins that he would keep the drawings domestically is evidence that he knew, or at least suspected, that they were export controlled.
