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Apparently the US has put Huawei on a trade blacklist that prevents US companies to trade with Huawei. With hardware and proprietary software it is straightforward how this can be executed (don't make any contracts, don't sell stuff/licenses).

With OSS this is a lot more complicated since there is no real deal or negotiation between the licensee and the provider of a license. Also, there is not a single copyright holder and copyright matters are often very complicated concerning OSS.

So the question is twofold: does the trade blacklist have any effect on OSS and if not, is it at all possible for the US government to limit the trade of OSS?

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Publishing source code is protected under the First Amendment. Therefore the US government cannot stop anyone from publishing open source software, and once it is available from a web site it is impossible to stop anyone else getting it.

However any kind of support contract (such as this) or other commercial arrangement would fall under the definition of "trade" and be banned.

Update in response to comments about ITAR.

The USA International Traffic in Arms Regulations still cover cryptographic software. However any attempt to prosecute an open source project for publishing cryptographic software would run up against the First Amendment. In 2008 the 9th Circuit found that open source cryptographic software is covered under the First Amendment, and hence the use of ITAR to restrict its publication is unconstitutional.

The US government declined to push this case to the Supreme Court, and no other similar cases have arisen since. In the meantime strong open source cryptographic software has been made widely available from within the USA without US government permission (Linus Torvalds is resident in the US).

In theory the US government might launch a case against an open source project, win the appeal in another circuit, and hence create a circuit split which the Supreme Court would have to resolve. However they have now had over 10 years to try this, and the longer they wait the less likely such a case is to succeed.

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  • I see, so is publishing source code also protected if it is not published as open source? So if Google would decide to publish their most current (non-open source) patches directly to Huawei, would that be protected?
    – Dakkaron
    May 20, 2019 at 12:30
  • It would probably depend on small details in the trade law and exactly what Google did. If the code was provided exclusively to Huawei then I suspect it would be considered part of an on-going commercial arrangement and hence be a violation of the law. The only question is whether the prosecution would have to demonstrate the existence of a specific quid-pro-quo for that source code.
    – Paul Johnson
    May 20, 2019 at 12:45
  • "publishing" normally means making something generally available. One definition of closed-source software is that the source is not published. If the copyright holder chooses to generally publish formerly closed-source code, that action is protected speech under the US 1st Amendment (unless it is classified or something) but sanctions could prohibit payment for it going to a sanctioned recipient.
    – David Siegel
    May 20, 2019 at 14:27
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    This discussion is getting off topic. The original question was about open source, which is published by definition. If you have a question about transmitting unpublished source code then that should go as a new question.
    – Paul Johnson
    May 20, 2019 at 14:53
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    @Moo See my update. I can't answer for OpenBSD, but I would speculate that they just wanted to avoid the risk, however tiny, of becoming the test case.
    – Paul Johnson
    May 28, 2019 at 11:47

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