230 bars false advertising claim against antimalware provider

Enigma Software Group USA LLC v. Malwarebytes Inc., No.
5:17-cv-02915, 2017 WL 5153698 (N.D. Cal. Nov. 7, 2017)
Malwarebytes and Enigma compete in the anti-malware software
market.  When Malwarebytes’s software
detects an unwanted program, it displays a notification and asks the user if
she wants to remove the program from her computer. Enigma alleged that, in
2016, Malwarebytes started to misleadingly identify Enigma’s software as a
potential threat, in order to interfere with Enigma’s customer base and to
retaliate against Enigma for a separate lawsuit Enigma filed against a
Malwarebytes affiliate.  Enigma sued for
false advertising under state and federal law, as well as tortious
interference. The court found all claims barred by § 230(c)(2) of the
Communications Decency Act, specifically subsection (B): “No provider or user
of an interactive computer service shall be held liable on account of … any
action taken to enable or make available to information content providers or
others the technical means to restrict access to material [that the provider or
user considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is
constitutionally protected].”
Zango, Inc. v. Kaspersky, 568 F.3d 1169 (9th Cir. 2009),
indicated that “companies that provide filtering tools,” such as Kaspersky, are
eligible for immunity under § 230(c). It found that Kaspersky qualified as a
service provider, and “has ‘made available’ for its users the technical means
to restrict items that Kaspersky has defined as malware.” Thus, Kaspersky
qualified for immunity under § 230(c)(2)(B) “so long as the blocked items are
objectionable material under § 230(c)(2)(A).” Kaspersky properly classified
malware as “objectionable” material.
Enigma argued that Zango
was distinguishable because malware, as defined by Malwarebytes’s criteria, wasn’t
material that is “obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable” because it is “not remotely related to
the content categories enumerated.” Zango
did not address whether an anti-malware provider has discretion to decide what
is “objectionable” because that argument was waived.  However, Zango
clearly held that § 230(c)(2)(B) immunity applies to “a provider of computer
services that makes available software that filters or screens material that
the user or the provider deems objectionable.” Thus, Zango was factually indistinguishable.
Enigma then argued that Malwarebytes was entitled to §
230(c)(2)(B) immunity only if it acted in “good faith.” Subsection (A) protects
“any action voluntarily taken in good faith” to restrict access to
objectionable material, but subsection (B) has no good-faith requirement.  The court refused to imply one; Congress knew
how to put one in if it wanted, especially given that subsection (B) includes
an explicit reference to subsection (A) with respect to the types of material
to which immunity applies.
Finally, Enigma’s Lanham Act claim didn’t entitle it to use
the IP exclusion; a false advertising claim is not a trademark claim for §230
purposes.

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