Free Open Source Software and Dual-Use: Loophole or Dissent?

Abstract

The Free Open Source Software (FOSS) seem far from the military field but in some cases, some technologies normally used for civilian purposes may have military applications. These products and technologies are called dual-use. Can we manage to combine FOSS and dual-use products? On one hand, we have to admit that this kind of association exists - dual-use software can be FOSS and many examples demonstrate this duality - but on the other hand, dual-use software available under free licenses lead us to ask many questions. For example, the dual-use export control laws aimed at stemming the proliferation of weapons of mass destruction. Dual-use export in United States (ITAR) and Europe (regulation 428/2009) implies as a consequence the prohibition or regulation of software exportation, involving the closing of source code. Therefore, the issues of exported softwares released under free licenses arises. If software are dual-use goods and serve for military purposes, they may represent a danger. By the rights granted to licenses to run, study, redistribute and distribute modified versions of the software, anyone can access the free dual-use software. So, the licenses themselves are not at the origin of the risk, it is actually linked to the facilitated access to source codes. Seen from this point of view, it goes against the dual-use regulation which allows states to control these technologies exportation. For this analysis, we will discuss about various legal questions and draft answers from either licenses or public policies in this respect.