Phil Zimmermann confesses?

Phil Zimmermann confesses?

Post by David Sternligh » Thu, 27 Feb 1997 04:00:00



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There has been some past discussion of whether Phil Zimmermann was
deliberately complicit in infringing RSADSI's patents at scale, and
whether
he was complicit in a felony violation of ITAR. I haven't seen an
explicit
description of the events in his own words, nor of his own proactive
role in
those events before now.

- From an interview in MicroTimes, February 5, 1997, P79 et seq, "The
Business
of Privacy", we finally have it, if the quotes are accurate:

Interviewer: "How did you release it?" (PGP)

Phil: Somebody who knew the Internet had volunteered to do the actual
legwork to release it, so I gave it to him. At the time, I didn't know
much
about the Internet--I knew how to send and receive electronic mail, but
I
didn't know anything about newsgroups, for example. In a short time it
was
all over the Internet"

Interviewer: "Which, functionally, was all over the world."

And later:

Phil:"When I went to Washington to testify, I met with a team of lawyers
that had been assembled. We met in the offices of the Electronic
Frontier
Foundation, and we actually had ten lawyers in the room, from EFF, CPSR,
ACLU, a couple of private attorneys from Washington, and my defense
lawyer
from Boulder. I gave them a briefing on the case so far, what I'd done,
what
I hadn't done, and what communications we'd received from the
prosecutor.
They gave me a very pessimistic outlook at that meeting."

Interviewer: "The basic assessment was, 'Phil, you're hosed'?"

Phil: That's right. ...I had a roomful of ten lawyers say to me, in a
unified front, that the chances were bad."

Later Phil says: "I think that having all those press articles increased
the
political difficulty of proceeding with the prosecution", and

"I think of those things" (Interviewer: "an aggressive campaign by
various
organizations to heap awards on you in extremely public ceremonies to
counter the heat from the government and make it even more embarassing
for
them to pop you") "as air cover."

Nothing in the above about "I'm innocent".

Then, in what I think to be the ultimate irony, Linda Hayes, the
marketing
VP of PGP Inc. says: "Phil's reputation, and the reputation of this
company
is based on trust."

There's an interesting sidebar "A few words from RSA" which compares
S/MIME
with PGP, PEM and MOSS, to the disadvantage of the latter three. It then
makes the point that "Netscape Communicator 4.0 should ship next month,
instantly creating over 30 million S/MIME users."

David

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Phil Zimmermann confesses?

Post by Anthony E. Gree » Fri, 28 Feb 1997 04:00:00


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On Wed, 26 Feb 1997 23:03:45 -0800, David Sternlight


>Interviewer: "How did you release it?" (PGP)
>Phil: Somebody who knew the Internet had volunteered to do the actual
>legwork to release it, so I gave it to him. At the time, I didn't know
>much about the Internet--I knew how to send and receive electronic
>mail,
>but I didn't know anything about newsgroups, for example. In a short
>time it was all over the Internet"

I would summarize the portion of the interview that you quoted (if
accurate) quite differently than a confession. Instead it appears that
he pointed out that not only did he not post it on the Internet, but
that he did not realize the export implications of anyone else doing so.
It appears that there was no intent to commit a crime and no realization
that his actions would result in worldwide dissemination, whether or not
he knew at the time that such dissemination would be a crime.

In short it does not appear he action was intended to result in
worldwide dissemination. I'm not sure that's true but that's what's
implied in the above statement.

Tony

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===================================================
PGP Key:  Send me email with Subject: send pgp key
PGP Info: Send me email with Subject: send pgp info
          or visit PGP Inc at <http://www.pgp.com/>
===================================================

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Fri, 28 Feb 1997 04:00:00


-----BEGIN PGP SIGNED MESSAGE-----


> On Wed, 26 Feb 1997 23:03:45 -0800, David Sternlight

> >Interviewer: "How did you release it?" (PGP)

> >Phil: Somebody who knew the Internet had volunteered to do the actual
> >legwork to release it, so I gave it to him. At the time, I didn't know
> >much about the Internet--I knew how to send and receive electronic
> >mail,
> >but I didn't know anything about newsgroups, for example. In a short
> >time it was all over the Internet"

> I would summarize the portion of the interview that you quoted (if
> accurate) quite differently than a confession. Instead it appears that
> he pointed out that not only did he not post it on the Internet, but
> that he did not realize the export implications of anyone else doing so.
> It appears that there was no intent to commit a crime and no realization
> that his actions would result in worldwide dissemination, whether or not
> he knew at the time that such dissemination would be a crime.

> In short it does not appear he action was intended to result in
> worldwide dissemination. I'm not sure that's true but that's what's
> implied in the above statement.

Well, let's look at that. He knew it was patented: "I did meet Jim
Bidzos in
1986." Jim has Phil's letter applying for a license, which was refused.
Phil
"released it" (PGP) "in  early June of '91." He gave a copy (according
to
his words) for the purpose of posting it on the Internet as widely as
possible. Looks pretty clearly like deliberate large-scale patent
infringement to me. What is more since he says he gave the copy for that
purpose (if the interview is accurate) he can't claim (as some have
suggested) to have been a passive observer or "innocent bystander".

By the way, Phil's interview comments seem to me to be quite
disingenuous.
Phil says Jim showed him Mailsafe in 1986. When asked:

Interviewer: "What was your relation to RSA at this time? Because I know
that down the line, problems ensued."

Phil: (Jim) "demoed it" (Mailsafe in late 1986) "for me. I don't
remember
much about the demo, except that it wasn't the way I would have wanted
to do
things. I never looked at the software again."

as if the issue were copyright. It wasn't; it was the patent.

He also knew about the Internet and used it for e-mail. His comment is
simply that he didn't know how to work newsreaders and presumably how to
upload (at that time), not that he didn't know what the Internet was. In
fact he says in the next few sentences of the interview:

Interviewer:" Was it your intention to disseminate it internationally?
Or
you just wanted it non-specifically out there as much as possible"

Phil: "I wanted it nonspecifically out there as much as possible."

I don't find it a convincing argument that one isn't exporting if the
target
set includes both domestic and foreign users ("as much as possible").

According to the persona claiming the name Kelly Goen he was the person
referred to by Phil. According to Kelly--I rely here on posts from
someone
claiming that name (the persona) and posted before the Grand Jury matter
made people more circumspect, and I also rely on the confirmatory (as I
recall MicroTimes) interview of Kelly by Jim Warren--Kelly thought he
was
going to be "one jump ahead of the Feds" and "went from pay phone to pay
phone to do the uploads to as many sites as he could" (quotes
approximate--the sense is accurate). According to Kelly he discussed
this
with Phil in advance.

I don't see that your interpretation makes sense.

And another thing--Jim Bidzos has claimed that the reason he wouldn't
give
Phil a free license is because Phil wanted in part to sell PGP, and that
would put Jim in an impossible position with respect to other vendors
who
had paid for a license. In the Microtimes article, Phil says:

"I had thought of selling PGP and making money, and was hoping to do
that."

That seems to support Jim's claim that in Phil's letter asking for a
free
license he indicated he was going to charge for some copies of PGP.

This interview seems to me to back up Jim Bidzos' contentions during the
sad
sequence of events, and give the lie to Phil's defenders of the time who
questioned Jim's integrity, called Jim a liar, and imputed sinister
motives
to the denial of a license.

David

Disclaimers applying to all my posts in this thread:

1. This correspondence represents the writer's personal opinion. It
relies
on electronic postings and published interviews attributed to particular
individuals. The writer's opinions flow from the sources cited and are
represented as such rather than as "the truth".

2. Phil Zimmermann has made himself a "public figure" through press
interviews, public testimony before Congress, etc.

3. The writer's practice is to use several sources which provide a
consistent account of the information discussed.

4. The writer is not an attorney and the above opinions do not reflect
legal
conclusions or determinations.

5. The Microtimes article is copyright 1997 by Microtimes and HPC, Inc.
Quotations are represented as fair use extracts for the purpose of
criticism
and commentary. The original article is quite long.

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Phil Zimmermann confesses?

Post by Ed Sto » Fri, 28 Feb 1997 04:00:00



says...

Quote:> There has been some past discussion of whether Phil Zimmermann was
> deliberately complicit in infringing RSADSI's patents at scale, and
> whether he was complicit in a felony violation of ITAR. I haven't seen an
> explicit description of the events in his own words, nor of his own proactive
> role in those events before now.

<snip>

I find nothing that appears in any way to confess any patent
infringement of RSADSI's patents by anyone. I have sought any filings
of accusations of same, and can find none. I will be grateful to be
referred to any judicial filings of complaint, if such exists, by
RSADSI on this matter. To the best of my knowledge, RSADSI has never
made formal complaint of infringement by PZ or by PGP in any judicial
venue, nor a has any judicial entity made such finding, or even
considered such an accusation. I am advised that infringement cannot
be deemed to have transpired simply by virtue of an allegation by an
unrelated third party, rather it is a case that must be made by the
one infringed upon in a court of competent jurisdiction, and a
finding rendered. Again, please refer me to such filings if I am in
error.

On the issue of "whether he [PZ] was complicit in a felony violation
of ITAR", I believe that to be complicit in a felony, is, well, a
felony. One would have the ability to provide reference to a
conviction in a court of law of the felony, or at least a finding by a
Grand Jury that such felony has transpired. One cannot be complicit,
to the best of my understanding, to a felony that exists only in the
mind of a rumor-bearer, or in hallway conversation. Again, if any
felony case has been made by any judicial entity in this matter, I
would appreciate being advised of it. ITAR was complex, and could be
misunderstood, and thus a "felony violation" might be suspected by a
layman or bandied in loose and biased conversation, while the Justice
Department made no such finding or allegation, even preliminarily.

Some people might be sensitive to having questions bandied about
regarding whether they were complicit in felonies, or whether they
think they infringed someone's patent, even in the absence of any
finding of felony in the matter, nor any judicial complaint by the
patent holder of any infringement.

--
-------------------------------
Ed Stone

http://www.synernet.com/estone
-------------------------------

 
 
 

Phil Zimmermann confesses?

Post by Anthony E. Gree » Sat, 01 Mar 1997 04:00:00


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My response was based on your original post.

Most your your followup used interview excerpts not in your original
post. If you want to discuss this, post the complete interview or post a
pointer. Don't selectivly excerpt the interview as it becomes necessary
to your argument.

Tony

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PGP Key:  Send me email with Subject: send pgp key
PGP Info: Send me email with Subject: send pgp info
          or visit PGP Inc at <http://www.pgp.com/>
===================================================

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Sat, 01 Mar 1997 04:00:00



> -----BEGIN PGP SIGNED MESSAGE-----

> My response was based on your original post.

> Most your your followup used interview excerpts not in your original
> post. If you want to discuss this, post the complete interview or post a
> pointer. Don't selectivly excerpt the interview as it becomes necessary
> to your argument.

My excerpts fairly represented the sense of the article with respect to
the points I raised. Since you seemed to want to twist the clear meaning
of what I'd posted (in the context of my post) into a pretzel, I posted
more quotes to show that your apologia for Phil wasn't consistent with
his interview. I can't be responsible for, nor anticipate someone else's
far-fetched interpretations.

I'm not going to commit copyright infringement by posting the complete
interview; I posted selected fair use excerpts which in my judgement
accurately represented the sense of the interview with respect to the
points I raised.

I'm do not plan to enter into a further discussion on this point. If you
want to pursue the matter buy a copy of the full article from

David.

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Sat, 01 Mar 1997 04:00:00



> And those who rely on the *New York Times* standard for libel might be
> well advised to read *Gertz vs. Robert Welch*, (US 1974), to be found at
> http://www.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=418...

> (b) To extend the New York Times standard to media defamation of private
> persons whenever an issue of general or public interest is involved would
> abridge to an unacceptable degree the legitimate state interest in
> compensating private individuals for injury to reputation and would
> occasion the additional difficulty of forcing courts to decide on an ad
> hoc basis which publications and broadcasts address issues of general or
> public interest and which do not. Pp. 345-346.

Phil is a "public figure". He has made himself so via repeated press
interviews, public pronouncements, and Congressional testimony.
Different standards apply to "public figures" than to "private persons".

This isn't about "an issue of general or public interest" extended to a
private person (your above reference), but about the pronouncements of a
"public figure". In the instant case it is specific to a public
interview given by Phil, so the nexus between his "public figure" status
and this discussion is direct and immediate.

David

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Sat, 01 Mar 1997 04:00:00




> says...
> > There has been some past discussion of whether Phil Zimmermann was
> > deliberately complicit in infringing RSADSI's patents at scale, and
> > whether he was complicit in a felony violation of ITAR. I haven't seen an
> > explicit description of the events in his own words, nor of his own proactive
> > role in those events before now.

> <snip>

> I find nothing that appears in any way to confess any patent
> infringement of RSADSI's patents by anyone. I have sought any filings
> of accusations of same, and can find none. I will be grateful to be
> referred to any judicial filings of complaint, if such exists, by
> RSADSI on this matter. To the best of my knowledge, RSADSI has never
> made formal complaint of infringement by PZ or by PGP in any judicial
> venue, nor a has any judicial entity made such finding, or even
> considered such an accusation. I am advised that infringement cannot
> be deemed to have transpired simply by virtue of an allegation by an
> unrelated third party, rather it is a case that must be made by the
> one infringed upon in a court of competent jurisdiction, and a
> finding rendered. Again, please refer me to such filings if I am in
> error.

Your legalistic nit-picking has no validity as far as I can tell. One
can violate the law or commit a tort without having to be sued, charged,
or convicted. Can you distinguish between committing a crime, and being
charged with it or convicted of it? Have you never heard of the legal
definition of "the elements of a crime"?

The *er got off during his first trial, but almost all jurors
during the second trial were convinced beyond a reasonable doubt (some
"beyond a shadow of a doubt") of his culpability after deliberating
meticulously (unlike the first jury) over the evidence. It seems clear
to most Americans (according to current polls) that he's an unconvicted
*er. Is it your view that if he actually did it but got off, then
he didn't do it?

Next you'll be telling us that all those drivers going 70 in a 55 mile
zone aren't speeding until they're arrested, charged, and convicted.
They may very well be uncharged or unconvicted but they're darn sure
speeding.

As for "third party", Jim Bidzos, the President of the company holding
the patent is on record that Phil infringed and had sent him a "cease
and desist letter" with which Phil presumably complied. Nevertheless
Phil knew it was patented, applied for a license, and without getting
one proceeded to distribute anyway. He is on record elsewhere as having
decided to go ahead anyway when he didn't receive the requested license.
Seems pretty clear to me.

Here's a quote a Wall St. Journal article on April 24, 1994 as reprinted
in "Building in Big Brother", ed. Prof. Lance J. Hoffman, Springer
Verlag 1995:

"RSA Data Security Inc. is also angry at Mr. Zimmermann. The computer
security firm says that in creating PGP, Mr. Zimmermann used one of its
patented cryptographic algorithms (sic) with out (sic) permission, after
RSA had denied him a free license.

""We sometimes joke that PGP stands for 'Pretty Good Piracy'" says James
Bidzos, president of the Redwood City, Calif. firm. "What he did was
simple. In this business, you simply don't rip off people's intellectual
property.""

Later in the article a very novel view of patent law is presented: "Mr.
Zimmermann says that technically he hasn't violated RSA patents because
he didn't sell the software until he signed the deal with ViaCrypt,
which does have a licence to use the algorithm". The notion that you
don't infringe when you make or give away an unlicensed version of
someone else's patented intellectual property but only when you sell it
will come as news both to patent attorneys and to the US Congress.

Quote:

> On the issue of "whether he [PZ] was complicit in a felony violation
> of ITAR", I believe that to be complicit in a felony, is, well, a
> felony. One would have the ability to provide reference to a
> conviction in a court of law of the felony, or at least a finding by a
> Grand Jury that such felony has transpired. One cannot be complicit,
> to the best of my understanding, to a felony that exists only in the
> mind of a rumor-bearer, or in hallway conversation. Again, if any
> felony case has been made by any judicial entity in this matter, I
> would appreciate being advised of it. ITAR was complex, and could be
> misunderstood, and thus a "felony violation" might be suspected by a
> layman or bandied in loose and biased conversation, while the Justice
> Department made no such finding or allegation, even preliminarily.

Again the elements of the crime are clearly defined. If one has met
those tests, one has committed the crime. One may be an unindicted felon
without being a convicted felon. One may be an uncharged accessory, but
an accessory nevertheless. The concepts are well-established both in law
and practice. Or are you one who thinks Nixon wasn't responsible for
Watergate because he resigned rather than being found guilty during an
impeachment trial.

Your argument seems to me to be a close relative of the argument I
sometimes hear from bent kids--if I steal and don't get caught it's o.k.

Nothing personal--I'm commenting on your argument, not you.

Best;
David

 
 
 

Phil Zimmermann confesses?

Post by Ed Sto » Sat, 01 Mar 1997 04:00:00



says...

Quote:> Phil is a "public figure". He has made himself so via repeated press
> interviews, public pronouncements, and Congressional testimony.
> Different standards apply to "public figures" than to "private persons".

> This isn't about "an issue of general or public interest" extended to a
> private person (your above reference), but about the pronouncements of a
> "public figure". In the instant case it is specific to a public
> interview given by Phil, so the nexus between his "public figure" status
> and this discussion is direct and immediate.

> David

Is it true that if you have your name as part of a "newsgroup", such
as alt.fan.david-sternlight, just to pick an example at random, you
are a public figure?

I'm still in search of ANY judicial recording of even an accusation of
a felony related to PGP or PZ, or accusation of infringement by same.
I can find none, but I continue to search.

In the absence of any such reference, this line of negative
association seems to be kindred with, "Only Tipper Gore's dead
grandmother can tell us what the Martians embedded in Vice Foster's
head two hours before his * at the hands of Iranian religious-
fundamentalists who conspired with Aliens from Venus having been
spurned by Elvis' ghost in favor of Ann Margaret".

But my example above may be closer. At least Vince Foster has been
proved dead, and most agree Elvis is also.

--
-------------------------------
Ed Stone

http://www.veryComputer.com/
-------------------------------

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Sat, 01 Mar 1997 04:00:00




> says...

> > Phil is a "public figure". He has made himself so via repeated press
> > interviews, public pronouncements, and Congressional testimony.
> > Different standards apply to "public figures" than to "private persons".

> > This isn't about "an issue of general or public interest" extended to a
> > private person (your above reference), but about the pronouncements of a
> > "public figure". In the instant case it is specific to a public
> > interview given by Phil, so the nexus between his "public figure" status
> > and this discussion is direct and immediate.

> > David

> Is it true that if you have your name as part of a "newsgroup", such
> as alt.fan.david-sternlight, just to pick an example at random, you
> are a public figure?

> I'm still in search of ANY judicial recording of even an accusation of
> a felony related to PGP or PZ, or accusation of infringement by same.
> I can find none, but I continue to search.

> In the absence of any such reference, this line of negative
> association seems to be kindred with, "Only Tipper Gore's dead
> grandmother can tell us what the Martians embedded in Vice Foster's
> head two hours before his * at the hands of Iranian religious-
> fundamentalists who conspired with Aliens from Venus having been
> spurned by Elvis' ghost in favor of Ann Margaret".

> But my example above may be closer. At least Vince Foster has been
> proved dead, and most agree Elvis is also.

Other readers well understand the reality of acts, whether charged or
convicted for the crimes which those acts connote or not. I'm sorry it's
such a struggle for you.
;-)

David

 
 
 

Phil Zimmermann confesses?

Post by Ed Sto » Sun, 02 Mar 1997 04:00:00


In article <33169CA5.7...@sternlight.com>, da...@sternlight.com
says...

> Ed Stone wrote:
> > <snip>

> > I find nothing that appears in any way to confess any patent
> > infringement of RSADSI's patents by anyone. I have sought any filings
> > of accusations of same, and can find none. I will be grateful to be
> > referred to any judicial filings of complaint, if such exists, by
> > RSADSI on this matter. To the best of my knowledge, RSADSI has never
> > made formal complaint of infringement by PZ or by PGP in any judicial
> > venue, nor a has any judicial entity made such finding, or even
> > considered such an accusation. I am advised that infringement cannot
> > be deemed to have transpired simply by virtue of an allegation by an
> > unrelated third party, rather it is a case that must be made by the
> > one infringed upon in a court of competent jurisdiction, and a
> > finding rendered. Again, please refer me to such filings if I am in
> > error.

> Your legalistic nit-picking has no validity as far as I can tell.

I do not believe it is nitpicking to ask what entity has
1) determined that the ITAR-related felony you mention has transpired;
2) determined that the patent-infringement you mention has transpired;
3) determined that PZ or PGP were involved in either.
Again, I cannot find any finding by a judicial entity (they are the
exclusive finders of the commission of a felony, are they not?) of an
ITAR-related felony involving PZ or PGP. If you know of same, please
refer me. I do not doubt that some bandy accusations of felony. Some
bandy anything you can imagine. Again, I cannot find that RSADSI ever
made any filing in a court to dispute, or accuse, or litigate against
PZ or PGP for any patent infingement issue. If they have, please refer
me. If no court has found that the above referenced felony transpired,
and RSADSI has filed no legal protest alleging the above referenced
infringement, then exactly what axe is being ground here?

> One
> can violate the law or commit a tort without having to be sued, charged,
> or convicted.

With regard to tort, since a legal term is being used, it is useful to
be legally precise. Specifically, a tort action has three elements:
1) existence of a legal duty from defendant to plaintiff;
2) breach of that duty;
3) damage as proximate result;
I can find no filing from RSADSI before any court alleging, must less
proving, any of the above. If such exists, please refer me. I do not
doubt that some may bandy accusations loosely. But we must distinguish
between loose accusation and more founded, disciplined, and documented
charges as would be found in a legal filing, which in this matter, to
the best of my knowledge, are non-existent.

"one can violate the law... without having to be ... convicted". One
is specifically and precisely not guilty of the violation of a law
until charged, tried, and convicted thereof.

> Can you distinguish between committing a crime, and being
> charged with it or convicted of it? Have you never heard of the legal
> definition of "the elements of a crime"?

Ever heard of due process?

> The murderer got off during his first trial,

1) two murders were determined to have been committed
2) a person was indicted for those murders
3) by what many would call bizarre twists, the person indicted is
found "not guilty" of murder.
4) did murders occur? yes
5) was anyone convicted of murdering them? no
6) did the indicted person commit murder?
a) if by murder, you mean the act of murdering someone, it sure looks
like it to anyone who understands PCR and standard deviation.
b) if by murder, you mean the *crime* of murdering someone, no, he did
not. How do I know? A body has been constituted and granted the
exclusive power to determine if he committed the *crime* of murder,
and they said "not guilty".

> but almost all jurors
> during the second trial were convinced beyond a reasonable doubt (some
> "beyond a shadow of a doubt") of his culpability

They did not look into whether or not he *murdered* the persons.
Murder is a crime. The second jury did not consider the issue of
commission of any crime. They looked into culpability for the
commission of a tort. The defendant was not found "guilty", as guilt
is not the issue here. He was found liable. Different.
> after deliberating
> meticulously (unlike the first jury) over the evidence. It seems clear
> to most Americans (according to current polls) that he's an unconvicted
> murderer. Is it your view that if he actually did it but got off, then
> he didn't do it?

> Next you'll be telling us that all those drivers going 70 in a 55 mile
> zone aren't speeding until they're arrested, charged, and convicted.

Depends on your definition of speeding. If it is the same as the legal
definition of speeding, then no, they are not *guilty* of speeding
until they are charged and convicted, or plead guilty. I've driven 70
in a 55 frequently. The signs said "Speed Limit 55". Am I speeding? Am
I *guilty* of violating DMV 43.997(c)? What if I am an ambulance
driver? A police officer? Taking birthing wife to hospital? Stuck gas
pedal? Brake failure at Cajon Pass? Gun to my head?

> They may very well be uncharged or unconvicted but they're darn sure
> speeding.

They are going faster than the posted limit. If we are speaking
colloquially of speeding, then to most, yes, they are speeding.
However "speeding" has both a colloquial and a legal application.
"Felony" does not. Felony is exclusively a legal term, with legal
definitions. If I say to the public about a non-public person, "Harry
is a felon, because he committed a felony.", surely I do not get off
the hook by saying, "well, I just meant "felon" and "felony" in the
non-legal, colloquial, loose-talk sense".

> As for "third party", Jim Bidzos, the President of the company holding
> the patent is on record that Phil infringed and had sent him a "cease
> and desist letter" with which Phil presumably complied.

Presumably? presumed by whom. If I send you a letter, as president of
a company holding a federally-registered service mark, telling you to
"cease and desist", exactly what standing does that have? To what
extent does it serve as proof that
1) you have infringed my service mark
2) I have evidence thereof
3) anyone in the world agrees with me

If the president of RSADSI is on record in this matter with any
judicial entity (those with the exclusive power to determine
infringement) please advise. There is a great difference between
loose, informal accusation, and legal process. The step of beginning
legal process frequently stops frivolous claims, since the accused can
counter sue...

> Nevertheless
> Phil knew it was patented, applied for a license, and without getting
> one proceeded to distribute anyway.

conjecture as to state of mind

- Show quoted text -

> He is on record elsewhere as having
> decided to go ahead anyway when he didn't receive the requested license.
> Seems pretty clear to me.

> Here's a quote a Wall St. Journal article on April 24, 1994 as reprinted
> in "Building in Big Brother", ed. Prof. Lance J. Hoffman, Springer
> Verlag 1995:

> "RSA Data Security Inc. is also angry at Mr. Zimmermann. The computer
> security firm says that in creating PGP, Mr. Zimmermann used one of its
> patented cryptographic algorithms (sic) with out (sic) permission, after
> RSA had denied him a free license.

> ""We sometimes joke that PGP stands for 'Pretty Good Piracy'" says James
> Bidzos, president of the Redwood City, Calif. firm. "What he did was
> simple. In this business, you simply don't rip off people's intellectual
> property.""

Why no suit? more loose talk, in the absence of legal process to
resolve the matter through due process...

> Later in the article a very novel view of patent law is presented: "Mr.
> Zimmermann says that technically he hasn't violated RSA patents because
> he didn't sell the software until he signed the deal with ViaCrypt,
> which does have a licence to use the algorithm". The notion that you
> don't infringe when you make or give away an unlicensed version of
> someone else's patented intellectual property but only when you sell it
> will come as news both to patent attorneys and to the US Congress.

I have heard one make exactly that argument with regard to the Pretty
Safe Mail beta. I didn't buy it then, and don't buy it now. The basis
of PZ's non-infringement is not that, rather it is that at no time has
any judicial entity even entertained the accusation, much less
determined that he did it.

> > On the issue of "whether he [PZ] was complicit in a felony violation
> > of ITAR", I believe that to be complicit in a felony, is, well, a
> > felony. One would have the ability to provide reference to a
> > conviction in a court of law of the felony, or at least a finding by a
> > Grand Jury that such felony has transpired. One cannot be complicit,
> > to the best of my understanding, to a felony that exists only in the
> > mind of a rumor-bearer, or in hallway conversation. Again, if any
> > felony case has been made by any judicial entity in this matter, I
> > would appreciate being advised of it. ITAR was complex, and could be
> > misunderstood, and thus a "felony violation" might be suspected by a
> > layman or bandied in loose and biased conversation, while the Justice
> > Department made no such finding or allegation, even preliminarily.

> Again the elements of the crime are clearly defined.

Evidently, defined clearly enough that no legal body has found that
any felony was committed in this matter, much less than PZ was
involved therein. Provide cite if this is in error.

> If one has met
> those tests, one has committed the crime.

Black's Law Dictionary says:
"Crime. A positive or negative act in violation of penal law; an
offense against the State or United States."

Tolerating the inconvenience of due process for a moment, first, it
must be determined ...

read more »

 
 
 

Phil Zimmermann confesses?

Post by David Sternligh » Sun, 02 Mar 1997 04:00:00



> > Can you distinguish between committing a crime, and being
> > charged with it or convicted of it? Have you never heard of the legal
> > definition of "the elements of a crime"?

> Ever heard of due process?

You confuse the requirement for due process imposed on government with
ordinary citizens' ability to speak and understand plain English and
express their views.

A man is a *er if he kills someone in cold * without legal
sanction. * is defined both in m*sources and in the "elements
of a crime" aspect of codified law.

It is an existential distinction, not a legal one. No due process is
required to make that statement or to hold that belief. One may fairly
and publicly call such a man a *er, and if he were so foolish as to
sue, truth would serve as a complete defense WHETHER HE HAD BEEN CHARGED
OR CONVICTED FOR THE CRIME OR NOT.

There's a clear distinction between BEING guilty and being FOUND guilty.
The first is existential. The second is a process distinction that
permits government or adverse parties then to take certain punitive
actions with the sanction of that government.

Speeding is speeding, even if the police don't get you for it.

Quote:> b) if by *, you mean the *crime* of *ing someone, no, he did
> not. How do I know? A body has been constituted and granted the
> exclusive power to determine if he committed the *crime* of *,
> and they said "not guilty".

The jury's finding was not GUILTY BEYOND A REASONABLE DOUBT. In
particular, they did NOT say "innocent". That closes that particular
chapter in the *er's adventures with the legal system, but did not
affect the existential issue, as we saw from the civil trial.

It was perfectly clear from the context that my comments were
existential. I never said Phil had been charged or convicted, and the
subsequent and repeated nonsense about how hard you looked to find
evidence he had been was all of your own making, for what purpose I
cannot say. It was a huge red herring with little to do with the topic
of this discussion, which is about what Phil SAID and DID in the patent
and ITAR context.

Quote:

> > As for "third party", Jim Bidzos, the President of the company holding
> > the patent is on record that Phil infringed and had sent him a "cease
> > and desist letter" with which Phil presumably complied.
> Presumably? presumed by whom.

"Presumably" in that if it could be shown that Phil had actually
committed infringing acts subsequent to the agreement (and Phil was
subsequently on record to the effect that he was limited by it), RSADSI
would have his ass.

Quote:> > Later in the article a very novel view of patent law is presented: "Mr.
> > Zimmermann says that technically he hasn't violated RSA patents because
> > he didn't sell the software until he signed the deal with ViaCrypt,
> > which does have a licence to use the algorithm". The notion that you
> > don't infringe when you make or give away an unlicensed version of
> > someone else's patented intellectual property but only when you sell it
> > will come as news both to patent attorneys and to the US Congress.

> I have heard one make exactly that argument with regard to the Pretty
> Safe Mail beta.

In the PGP case the point was that giving something patented away
without a license is infringing as much as is selling it without a
license. Phil had no RSA license of any kind, and RSAREF wasn't out when
Phil "released" PGP.

In the PSM case there is a particular license (RSAREF) permitting using
or giving away RSA without infringing, but not selling or charging for
it. That discussion was about the range and scope of the coverage of
that existing license and its applicability to PSM. No representation
was ever made in that discussion that giving away was non-infringing in
the absence of a license. Thus it was not "exactly that argument." You
are smearing two separate and distinct issues:

1. That patent law provides that making or copying or giving away
without a license is as much of an infringement as selling--the PGP
discussion here. It clearly does and there is no dispute among patent
attorneys on this point despite Phil's quoted rationalization to the
contrary.

2. Whether PSM beta testing was covered by the RSAREF license if a US
tester had a prior copy of RSAREF and its license--the argument you
"have heard one make".

This discussion is about what Phil said and did, and I don't propose to
continue further down your irrelevant side-path.

Best;
David

 
 
 

1. Buying PGP 8.0 direct from Phil Zimmermann

I notice on Phil's web site that he is a PGP reseller. So you can buy PGP
8.0 directly from the originator of this software, and put a few well
deserved bucks in Phil's pocket at no additional cost to you. The same
delivery and support provisons apply.

See http://www.philzimmermann.com/sales.shtml

Phil is the guy who took the genie out of the bottle at great personal
risk, and for all the right reasons. A hero in privacy rights and popular
crypto. Buying strong crypto from Phil directly is a good thing.

2. DELETED A HIDDEN FILE

3. *** Message from Phil Zimmermann ***

4. ATM/POS/EFT Solutions...Alternatives?

5. Phil Zimmermann to be a millionaire

6. SP1 & IE4.0 Problems

7. Phil Zimmermann on recent FUD and PGP 5.0 plans

8. A1200 PC Emulators

9. PGP, Phil Zimmermann and the law

10. PGP, Phil Zimmermann, and the law

11. Spammer Confesses!

12. Doubts about Linux - Unix Confesses