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Barracuda Networks Enlists Open Source Community In Trend Micro Patent Fight

The e-mail and Web security firm is asking the open source community to provide information that can invalidate Trend Micro's patent on gateway antivirus scanning.

But the case isn't so much being tried in the press as on the Internet, where the open source community has what amounts to a home field advantage. Posts about the patent lawsuit proliferated on Tuesday and Barracuda's plea for help has delivered results.

"We have assembled literally hundreds of pieces of things that are prior art, and even today we received more from the open source community, because they believe in what we're standing up for," said Drako.

For some in the open source community, the issue isn't so much the legitimacy of Trend Micro's claim as the legitimacy of the patent system itself, and by extension the legitimacy of intellectual property as a legal construct. Eben Moglen, the founding director of the Software Freedom Law Center, open source software advocacy organization, said that the monopoly conferred by patents needs to be balanced against social needs, which in this case involve protection from malware. "We've got viruses that should not exist, producing enormous unsafety and abetting global fraud and organized crime," he said. "We've got spam out of control and leading to a decrease in the productive utilization of e-mail. And we've got small businesses and home users faced with a choice between installing network appliances, routers, portals and other kinds of gear to protect them, or risking having their machines turned into instruments of crime, to their own economic harm and the harm of the community in which they live. "

Moglen characterizes this as an ecological problem and he says that the solution is low-cost network defense gear, "which can be used to eliminate much of the harm done by crappy, proprietary software.

"The alliance between low-cost manufacturers like Barracuda and free software producers is slowly but surely making it possible to restore the security of the Net from the extraordinary condition of unsafety, insecurity and economic loss that Microsoft imposed on the world by making crappy software," said Moglen.

Intellectual property lawyers and other stakeholders in the patent system may scoff at such stridency but contempt for the IP status quo isn't nearly as extreme as supporters of the system might suggest. The U.S. Supreme Court itself last April issued a ruling that expanded the definition of obviousness, making it harder to win a patent. Technology companies like Google, beset by allegedly frivolous patent lawsuits, continue to call for patent reform. Some countries like Brazil and India flout pharmaceutical patents for the benefit of their citizens. And that's to say nothing of the broader worldwide civil disobedience -- something many characterize as mass theft -- against other forms of intellectual property such as copyrighted music, text, and film.

In calling the online security situation an "ecological disaster," Moglen likewise frames the debate as fight between the social good and singular greed.

"We're going to have an argument about whether it's acceptable social policy to have a guy that succeeded in getting that patent by the skin of his teeth driving up [the cost of] perimeter security gear all over the economy," said Moglen. "Not primarily because he's even going to get a piece of that action but because he wants to live in a world in which those devices are expensive. Because he wants to live in a world where it's hard to provide good perimeter security and you've got to pay prices like his to get the boxes. That's unacceptable social policy completely."

Moglen observes that patent law, unlike other forms of government intervention in the economy, lacks any kind of mandated cost-benefit analysis. "Patent law doesn't contain any kind of idea of cost-benefit analysis," he said. "Patent law operates as though every innovation were of infinite value." As a consequence, he says, even the most trivial innovation may wind up with a 20-year government-granted monopoly, at a cost to society of far more than the innovation is worth."

"Frankly, this is nuts," said Moglen.

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