ITAR Public Domain: DIYDrones and Defense Distributed

What is public domain for ITAR compliance purposes? Apparently, being available on a NASA website for years and widely available to the public without restriction is insufficient (and frustrating for aero engineers like me!).

This question has raised discussion on the DIYDrones site:

By and large, open-source qualifies as public domain, so the active technology being created free by the Internet and shared by the Internet means it's exempted.
--Chris Anderson, DIYDrones founder
5 steps to cutting costs: Open-source leads to regulatory breaks

Anderson goes in to more detail,

Autopilots are export controlled by the International Traffic in Arms Regulations (ITAR), which is why it's very difficult for US manufacturers to sell abroad without incredibly complicated guarantees about security procedures put in place by the buyer. That doesn't just apply to autopilot hardware; it also covers autopilot software, groundstation code and other technology in digital form such as schematics. And "export" doesn't just mean physically sending boxes abroad, it also covers "export by electronic means" such as over the Internet.

So why haven't we been arrested? We publish autopilot code, schematics and PCB design files here, and nearly half of our user base is outside the US. The answer is the "public domain exclusion" in ITAR. Because we're open source and release everything to the general public, it's no longer subject to export control.

Why haven't we been arrested?

The argument Anderson is making is the same one that Cody Wilson made about his Wiki Weapons project. Wilson took a "belt and suspenders" approach to getting his files into the public domain,

Wilson argues that he’s also legally protected. He says Defense Distributed is excluded from the ITAR regulations under an exemption for non-profit public domain releases of technical files designed to create a safe harbor for research and other public interest activities. That exemption, he says, would require Defense Distributed’s files to be stored in a library or sold in a bookstore. Wilson argues that Internet access at a library should qualify under ITAR’s statutes, and says that Defcad’s files have also been made available for sale in an Austin, Texas bookstore that he declined to name in order to protect the bookstore’s owner from scrutiny.

State Department Demands Takedown Of 3D-Printable Gun Files For Possible Export Control Violations

However we see two very different trajectories in each case. DIYDrones is merrily turning out hardware and software, and publishing it all online, while Defense Distributed recieves take-down letters from the State Department. I can't see in the ITAR definition of public domain how the two situations should recieve different treatment.

§ 120.11
Public domain.
(a) Public domain means information which is published and which is generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also § 125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.

Previous cases have shown that the restrictions on publishing source code for cryptography violate the First Amendment, why wouldn't restrictions on publishing gcode for 3d printing a drone or a pistol? I think the First Amendment problems around the Defense Distributed case are the real interesting part of this. Wilson's provocations are not really about the 2nd Amendment, the gun is just a clever marketing hook. His focus is on political speech and freedom of the means of production,

PCMag: Are freely available guns the core of your political beliefs or a part of that larger ideology?

Wilson: No, I think it's a very clever way of unpacking the ideology for people. A lot of people get there and stop at the gun. And that's great, like some of the Second Amendment people who are like, "Alright, this is great for guns." No, I think it's more importantly a signal of the future and it helps through just getting at some of these bigger ideas.
Dismantle the State: Q&A with 3D Gun Printer Cody Wilson

In another article,

Wilson said we’re not so much dealing with firearms regulation as “what can be put into the public domain and how.”

“It’s a demonstration of claiming everything in the national security interest,” he said. “They say, ‘well, your useless plastic gun can’t be shared with other people. It’s important to national security.’ In the end, everything will be claimed…”

It seems to be “consistent [with] the total bureaucratization of social space itself,” Wilson continued.
'In the End, Everything will be Claimed'

Probably the biggest reason for the difference in treatment between DIYDrones' Chris Anderson and Defense Distributed's Cody Wilson is that Anderson wanted to build toys for his kids, while Wilson wants to take on the Leviathan. Lesson: be careful what you wish for.