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Background

Recently I was reading about embargoes and sanctions on Iran (also this link) and before Sudan, and it got me thinking about how they could impact Open Source Software. Sanctions being applied not only by USA but sometime by other states and unions of countries (EU for example).

I know that equipment from, say, an American manufacturer, could not be supplied to North Korea (for example an Oracle Server or a Cisco router) pending legal action. Thus i wondered if there was anything that restricted the use of an American made Open Source Software in say, North Korea.

What I understood

On the Open Source Initiative website, they state that :

Can I stop "evil people" from using my program?

No. The Open Source Definition specifies that Open Source licenses may not discriminate against persons or groups. Giving everyone freedom means giving evil people freedom, too.

The notion of "good people" and "evil people" is beyond the scope of this question, but this tells me that anybody, anywhere could in fact use it without any troubles at all (talking about only the usage of the software). However, naively, even if I would see the MIT License as an Open Source License, I see it as well, naively, as a License created under US Law by an American Institution (MIT License).

My question is divided as this:

  1. Can developers from a state under such sanction, use Open Source Software as they want ?
  2. Could developers of the Open Source Software be sued for the use of their creation by the states under sanction ?
  3. If a team of developers of another country were to help the developers to use the Open Source Software (support, online help etc.), could they face legal action ?

NB : I am a software developer in Europe, I do not have prior knowledge of international or laws in the USA.

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    Open Source software is, essentially, software everyone has a copyright license to use (and there are sometimes effects on patent licenses). It has no privileged legal position in respect to other legal restrictions.
    – David Thornley
    Commented Oct 30, 2018 at 15:53
  • Related question, but with US scope: law.stackexchange.com/questions/41212/…
    – Kozuch
    Commented Feb 15, 2021 at 17:46

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Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies.

If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.)

However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use.

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You can't make it illegal under copyright law to distribute the software. But copyright law is not the only law. If your government says "export this software to North Korea or Russia, and we throw you in jail", and you export it, you haven't violated any copyright, but still will go to jail.

What would be unfortunate for you if you gave someone software before sanctions, and now there are sanctions, and they ask you for the source code. You have the choice: Give them the source code, and go to jail. Or don't give them the source code, and be in violation of your license. It may be that for example the GPL license cannot force you to do something illegal, and the copyright holder would lose in court if they tried to sue you for not violating your country's laws.

But a lot of open source software is not in any way protected. I can go on GitHub and download lots of open source software, legally in my case because I'm not under any sanctions. While actively exporting software is one thing, any sanctions would have to specify what exactly you have to do to prevent download against sanctions. And in practice you can't prevent it, if a combined half a billion Americans and Europeans can download your software legally, and only one needs to break the law, or live in a country without sanctions.

Also, once the software is say in Russia, I don't think any US law or European law could be enforced anymore.

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