Another malware misattribution claim fails

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 2018 WL
2996897, No. 18-CV-234-RP (W.D. Tex. Apr. 23, 2018)
PC Drivers “offers software designed to help customers
optimize the processing speed of their computers and identify software drivers
ready to be updated.” Malwarebytes sells software that blocks various programs
on its customers’ computers, including software deemed malicious or potentially
unwanted (the latter of which are called PUPs). PC Drivers contends that, in
January 2018, Malwarebytes inappropriately branded one or more of its programs
as a PUP, which can make PC Drivers’ software inoperable and block access to PC
Drivers’ website. This happened before, and when the software received
certification from a newly developed third-party certifier called AppEsteem,
Malwarebytes stopped labeling the programs as PUPs. PC Drivers alleged that it
continues to carry AppEsteem certification and that its programs have not
changed substantially.  PC Drivers sued
for false advertising, trademark infringement [what?], trademark dilution, tortious
interference with contractual relations; promissory estoppel; and related
claims.  (Similar
litigation against Malwarebytes discussed here:
§230 blocked liability.)
The court declined to grant a preliminary injunction, despite
evidence that Malwarebytes has not been cooperative with PC Drivers as PC
Drivers has attempted to figure out the problem. PC Drivers also argued that it
was the victim of an act of retaliation taken by Malwarebytes against AppEsteem
in response to AppEsteem’s threat to list Malwarebytes as a “deceptor.” But
that wasn’t enough.
Malwarebytes argued that §230’s statutory Good Samaritan protection
for blocking and screening of offensive material rendered it immune to all these
claims.
PC Drivers argued that Malwarebytes wasn’t an “interactive
computer service” under the statute, but it was, because the phrase is to be broadly
applied using the definition “any information service, system, or access
software provider that provides or enables computer access by multiple users to
a computer server ….” Malwarebytes “provide[s] users with access to the new
malware definition content that is available on its servers.”
PC Drivers also argued that the immunity didn’t apply to
Malwarebytes’ own statements, but “this requirement is present only in §
230(c)(1).”  I’m not sure this is
responsive: Malwarebytes might be immune for the blocking and any consequences
proximately caused by the blocking itself, but not immune for things it said
about the blocking, which could independently cause damage.
Finally, PC Drivers alleged that Malwarebytes did not act in
good faith. But § 230(c)(2)(A)’s good-faith requirement (for “any action
voluntarily taken in good faith to restrict access to or availability of
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”) doesn’t extend to §
230(c)(2)(B) (“any action taken to enable or make available to information
content providers or others the technical means to restrict access to material
described in paragraph [A]”) under the statute.
Malwarebytes argued that PC Drivers’ federal unfair
competition claim fell under the safe harbor because it wasn’t an IP claim. “Although
the specific provision does not address intellectual property, it is a part of
the Lanham Act, which as a whole ‘pertain[s] to intellectual property,’” so
some courts call all 43(a) claims clawed back from §230 immunity, while others don’t.
The court didn’t resolve the issue because there was no likely success on the
merits regardless.
PC Drivers alleged that Malwarebyte’s designation of PC
Drivers’ software as a PUP was misleading. But this wasn’t false: the
designation “potentially unwanted program” “inherently carries with it the
acknowledgment that it is only a guess as to whether the program is or is not
unwanted,” and “unwanted” “looks more like a subjective opinion than a factual
assertion.”
Dilution: There was no evidence of fame.
Infringement: PC Drivers alleged that there was likely
confusion about association, authorization, endorsement, affiliation, or
sponsorship. Understating the matter, “the Court notes that this claim is
strange when viewed in conjunction with PC Drivers’ other claims.” Malwarebytes
invoked nominative fair use. There was no evidence that Malwarebytes used PC
Drivers’ mark in any way other than listing the name of the website to explain
what it is blocking. The PUP label “implies anything but endorsement; customers
told by Malwarebytes that PC Drivers’ software might be unwanted are not likely
to think that PC Drivers endorses Malwarebytes.” There was only one reference:
to the domain name download.driversupport.com. It was unclear how Malwarebytes could
the user of the name of the website it was blocking without using the domain
name. [Another case where “use as a mark” would also be useful to explain why
this is ok.]

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