February 11, 2008

Trend Micro patent claim provokes FOSS community, leads to boycott

Author: Bruce Byfield

Trend Micro might insist that its patent case against Barracuda Networks isn't about free software -- but try telling that to the free and open source software (FOSS) community. Since Barracuda Networks went public about the case last month, it has heard from "a tremendous number of individuals" according to Dean Drako, Barracuda's president and CEO. Even more significantly, announcement of the case has led to a boycott against Trend Micro.

The case is an attempt to enforce Trend Micro's patent for antivirus detection on an SMTP or FTP gateway. Already successfully used against such companies as McAfee, Symantec, and Fortinet, the patent is being applied against Barracuda for its distribution of Clam Antivirus (ClamAV), the popular FOSS antivirus program, with its hardware products. The case began when Barracuda sought a declaratory judgment in March 2007 after receiving a series of letters from Trend Micro in 2006-2007. Trend Micro responded by a filing with the American International Trade Commission in November 2007, claiming that ClamAV was being imported on the grounds that many of its contributors are from outside the United States. The schedule for the case is expected to be announced by the end of this month.

Comments and reactions

Since Barracuda publicized the situation on January 29, both the company's inbox and the blogosphere have been overflowing with responses -- some negative or neutral, but the great majority supportive. The fact that at least one commenter in Barracuda's legal page requested that their name be withheld to avoid coming under attack themselves suggests how seriously the FOSS community is taking the situation. However, amid this concern, many manage to give additional insights.

Some of those who contacted Barracuda suggested prior art -- documents that would prove that the idea of gateway antivirus existed before Trend Micro applied for its patent in 1995. "We have already received about 20 prior art submissions, many of which appear at first inspection to be very relevant," Drako reports.

Many of the responses expressed concern about the possible impact of the case on the FOSS community. Justin Mason, the creator of SpamAssassin, blogged that "Trend Micro's actions are clearly an attack on free and open source software and its users, as well as on Barracuda Networks.... Given Apache SpamAssassin's prevalence in many anti-spam mail filtering appliances (including Barracuda!), this is a very worrying precedent for us -- our product could be next."

In the same vein, Pamela Jones of Groklaw wrote, "I think it's another attempt to attack the FOSS development model and force those using such software to pay the proprietary dudes a tax. That's the same dream that SCO started with, and Microsoft shares the dream. A lot of proprietary software folks realize the sun is setting on their business model, and they would like a piece of what is replacing it.... If ClamAV is not successfully defended, I think there may be an avalanche of this kind of attack, proprietary vendors looking for some silver to cross their palms from anyone using FOSS software."

To these general concerns, Mark Gibbs of Network World raised the concern of the case being heard by the ITC. "If the ITC should decide Barracuda is infringing Trend Micro's patent," Gibbs wrote, "then anyone with intellectual property can start legal proceedings through the ITC against someone who uses FOSS that has any development done outside of the United States. The big risk here is that the ITC's judgments may be more damaging and restrictive than those of US courts, making the role of FOSS in the market far more complicated and less effective."

Other comments focused on the flaws that the case revealed in the US patent system.
Emily Berger, an Intellectual Property Fellow at the Electronic Frontier Foundation, described the case as a "bogus patent claim," implying that it was too obvious to be patentable. In much the same way, Gibbs described the patent as involving "something so blindingly obvious," while Justin Mason, in the same post as quoted before, describes the patent as one that "covers a trivial method, one which was obvious to anyone skilled in the art at the time the patent was written."

As might be expected, posters on Groklaw were particularly expansive on this aspect of the case, joking about the obviousness of the idea and decrying a system that allows the first filer to obtain the patent rather than the inventor. The general consensus on Groklaw was that the very idea of patents "needs to be thrown into the digital trashcan."

Still other observers expressed concerns about the implications for security in general. "More open source equals less spam and more security," Matt Assay wrote on CNET. "Trend Micro is effectively trying to raise the price of security. Take ClamAV off the market with its 1 million deployments at the gateway and 100 million-plus PCs will be less unprotected, or less protected." Pamela Jones raised the same concerns, arguing that "blocking FOSS antivirus solutions only makes the Internet more dangerous for everyone."

Finally, Jim Zemlin, the executive director of the Linux Foundation, commented on the short-sightedness of Trend Micro's efforts at patent enforcement. "A company that files a patent claim against code coming from a widely adopted open source project vastly underestimates the self-inflicted damage to its customer and community relationships. In today's world, all of our customers in the software industry are enjoying the benefits of a wide variety of open source projects that provide stability and vendor-neutral solutions to the most basic of their computing needs. I talk to those customers every day. They consider these claims short-sighted and those that assert them to be fearful of their ability to compete in today's economy."

Informal and formal boycotts

As if to illustrate the truth of Zemlin's remarks, some commenters announced their intention to avoid doing business with Trend Micro. On Information Week, CmonSpike wrote that, after reading about the case, "I will NOT be renewing our Trend AV licenses next year."

Similarly on the Ars Technica forums, another poster remarked that "I never advertised that Trend Micro has bad products; when asked about the company I normally would tell customers of mine that you couldn't go wrong with them. [But] my opinion is changed just knowing that they are trying to sue over an open source antivirus that I use on my home server and workstation."

These examples are both personal. However, on Friday, Dutch free knowledge and culture advocacy group ScriptumLibre called for "a worldwide boycott on Trend Micro products." In its news release, ScriptumLibre summarizes the case, with its chairman, Wiebe van der Worp, describing Trend Micro's actions as "well beyond the borders of decency." The ScriptumLibre site includes link to free graphics that supporters can add to their Web pages to show their support and a call for IT professionals that provides a links to help people to educate themselves about the case and suggests a series of actions that people can take in the boycott.

The boycott has already gained some key support. "I support the boycott and the Free Software Foundation supports the boycott because our community needs to take action against those who commit aggression using software patents," Richard Stallman told Linux.com.

Stallman notes that the Foundation does not use Trend Micro software, because it is proprietary. "Of course, not everybody is a free software supporter," he says. "But everybody who uses computers, whatever he thinks about the issue of free software, should be up in arms against software patents. We have to recognize that anyone who uses software patents for aggression is attacking all computer users."

Eben Moglen of the Software Freedom Law Center is aware of the case, and is considering a patent re-examination request or another intervention in the case.

Contacted by Linux.com, Barracuda's Drako acknowledged the array of reactions by saying, "We at Barracuda want to extend our thanks to the tremendous number of individuals who expressed support for our defending the use of ClamAV free and open source software, as well as to the community members that have submitted prior art."

If Trend Micro hasn't already, it is about to find out that the case is about free software after all.

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