Right now, my candidate for the worst job isn’t a nanny on a visa or a roofer on a hot summer day. It’s being a publicist for Trend Micro. By launching a patent violation suit against Barracuda Networks for distributing a piece of free software called ClamAV, Trend Micro has created a public relations disaster for itself, and possibly a financial one as well.
It now faces a worldwide boycott and the strong possibility of losing a patent it has successfully defended in the past — all because its executives lacked the imagination and sense to take free software seriously. In fact, the company’s actions could be taken as a textbook case of how not to interact with the free software community.
The situation arises from Trend Micro’s efforts to enforce its patent for scanning incoming and outgoing files on a server for viruses. Having already enforced the patent against Fortinet, McAfee, and Symantec, Trend Micro began writing a series of letters to Barracuda Networks, suggesting that including ClamAV with its hardware products violated the patent.
When Barracuda asked for a declaratory judgment in the matter, Trend Micro responded by filing with the American International Trade Commission. Barracuda responded by enlisting the help of the free software community, which responded enthusiastically, not only with dozens of pieces of prior art — documentation to prove the patent should not have been granted — but also a formal boycott endorsed by the Free Software Foundation.
In addition, the Software Freedom Law Center is considering asking for a patent re-examination or intervening in some other way. Scan the blogs and editorials, and you will soon discover that the community is angry about the case — not just mildly peeved, but full of the kind of deep-seated fury and conviction that takes years to subside.
The first mistake: Dismissing free software concerns
Trend Micro’s mistake was not to take free software seriously. Carolyn Bostick, vice president and general counsel at Trend Micro, insists that “Open Source really isn’t at the heart of the issue at all. It’s really about a company that’s selling products for profit that infringes what we do with a time-tested patent.” And, in the strictest sense, she’s right.
ClamAV is only incidentally involved in the case, and SourceFire, which owns ClamAV, is not being sued. However, had Trend Micro consulted some PR hacks as well as its lawyers, it might have realized that, if nothing else, perception is frequently more important than reality.
Similarly, to imply, as Trend Micro’s legal team has, that Barracuda has enlisted the free software community for its own purposes is true, but beside the point. Yes, Barracuda benefits from the community’s involvement — but so what? Barracuda seems a member of the community in reasonably good standing, and mutual aid is at the heart of free software ethics.
Yet, even if Barracuda was shown to be a cynical manipulator of the community’s naive idealism, the case raises more than enough issues for concern. Should Trend Micro succeed in enforcing its patent in this case, then all users of ClamAV would be vulnerable to future patent defences. Trend Micro’s legal team claims that it is unaware of anyone else using ClamAV for gateway protection, but anyone with an awareness of its status in the community might be excused for thinking this claim disingenuous. The number of potential defendants in future patent cases must number in the thousands.
Then there’s the excuse for filing with the ITC: Trend Micro’s claim that, because ClamAV includes contributions from developers around the world, Barracuda is using software imported into the United States. If this claim is accepted, then a precedent could be set for hearing all patent cases involving free software before the ITC — a venue known to be exceptionally demanding and time-consuming for defendants.
Add to these concerns the growing conviction in both free and proprietary software that software patents stifle innovation, a common sense rejection of obvious patents, and a concern for the loss of security if free software like ClamAV can no longer be used, and worry over the implications of the case seem only natural.
Yet Trend Micro refuses to accept that any of these concerns are valid, let alone to answer them. When I interviewed two of its legal team for the first story I did on the case, my efforts to raise these concerns so that Trend Micro could respond to them were met by a series of belittling statements.
“I don’t think you can just put a blanket statement like that,” intellectual property counsel John Chen said when I mentioned the concern that others might face future patent enforcements. Similarly, when I referred to the possibility that the ITC might become the preferred venue for patent infringement cases involving free software, Bostick’s response was, “That’s incredible. I think people are trying to draw conclusions that logically don’t exist.”
Similarly, in summarizing, Chen said, “I think people are drawing too many conclusions about the potential significance of this case,” while Bostick added, “This is not about open source, and this is simply a bit of misdirection.”
Instead of explaining why the concerns were groundless, Bostick could only suggest that “the facts should mitigate people’s concerns.” According to her, what mattered was that the case was against a specific company and only involved a patent issued in the United States.
To be fair, Trend Micro’s legal team was obviously feeling the strain of trying to comment on a case in litigation without saying too much that might prejudice the case. All the same, the overall impression was that, like many new to free software, those I talked to knew better than the community.
Apparently, it never occurred to them that this condescension would do nothing to mitigate concerns — nor that their language was less than endearing to the highly intelligent people they were addressing. While explanations might have helped to pacify the community, the derisive dismissals could only make community members conclude that their concerns were justified. Trend Micro would have done better to stay silent.
No wonder the community deluged Barracuda with well-wishes and prior art, and organized a boycott. The one surprise was that Trend Micro’s executives weren’t burned in effigy.
Other mistakes: No reassurances, and staying the course?
How should Trend Micro have responded, then? Far be it from me to offer assistance, but, since I doubt that the company will listen to me anyway, I can suggest some answers.
To start with, as part of addressing the concerns seriously, Trend Micro might have provided some assurance to the community that it wouldn’t be picked off one by one. Other companies such as IBM and Sun Microsystems have made such an offer, while Novell has promised only to use its patent portfolio defensively. Just how useful such announcements might be is debatable, but at least they would show goodwill.
To be cynical, at the very least, such a declaration might divide the community’s almost unanimous response. Yet, asked if Trend Micro would consider such a promise, all that Chen would answer is, “I don’t think that we’re prepared to make a statement on that.”
Such responses suggest that little chance exists that Trend Micro will treat the community seriously in the future. A company that wished to protect its bottom line might realize that, given the number of community members employed as system administrators and IT manager, the boycott might seriously affect profits for several years, regardless of whether it wins its court case or not.
An enlightened company, instead of squeezing out extra profits for a single quarter, might decide that the gracious thing would be to renounce the patent before it’s taken away by either the evidence in the case or a patent re-examination. At least then, it might retrieve some good will while accepting the inevitable.
Yet, based on Trend Micro’s initial statements and subsequent silence, it is unlikely to do any of these things. Narrowly focused on enforcing its legal rights, Trend Micro appears unaware of the strength of the free software community and the communities surrounding it. And, whether financially or legally, it seems likely to pay the price for this tunnel vision.
The case against Barracuda could even become the test case that the about-to-be launched End Software Patents campaign uses to achieve its end — a possibility that would prolong the problems for Trend Micro indefinitely.
The one good thing that may come out of this case is that the strength and influence of the free software community will be revealed. Just as the fact that violators of the GNU General Public License prefer to settle out of court strengthens the regard with which the license is held, so the strong responses to Trend Micro may make other companies think twice before acting against the community’s interests.
You could almost pity Trend Micro for becoming the example, except that it brought these problems upon itself.