Texas A&M Law Review

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The cybersecurity and cybercrime industries are tied together in an arms race where both seek out new security vulnerabilities to exploit on offense or to remediate on defense. Malware (malicious software) offers one of the primary weapons pioneering new computer technologies on both sides. However, the average Internet user sees malware at best as an annoyance that is merely the price of surfing the web.

It is clear that cybersecurity is a business and a successful one. The cybersecurity industry maintains copyrights and patents on our cyber defense technologies— antivirus software, firewalls, intrusion prevention systems, and more. There are no federal copyrights and patents on malware, even regarding the cybersecurity industry’s creations. From an intellectual property perspective, there is no difference between ordinary software and malicious software. Malware, as offensive software, can and should be protected, just as we protect our defensive software.

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