9th Circuit drives big hole through 230(c)(2) immunity

Enigma Software Group USA, LLC v. Malwarebytes, Inc., —
F.3d —-, 2019 WL 4315152, No. 17-17351 (9th Cir. Sept. 12, 2019)
Section 230(c)(2) “immunizes computer-software providers
from liability for actions taken to help users block certain types of unwanted,
online material,” including sex, violence, and material that is “otherwise
objectionable.” “We have previously recognized that the provision establishes a
subjective standard whereby internet users and software providers decide what online
material is objectionable.”
The parties compete in the market for software that help
internet users filter unwanted content from their computers. Enigma alleged
that Malwarebytes violated the Lanham Act and New York state law by configuring
its software to block users from accessing Enigma’s software in order to divert
Enigma’s customers. The district court found this covered by 230(c)(2), but
because the parties are competitors, the majority (over a dissent)
disagreed.  “Otherwise objectionable” isn’t
broad enough to encompass an anticompetitive motive.  Malwarebytes argued that its reasons were legitimate,
but Enigma’s allegations of anticompetitive animus were sufficient to avoid a
motion to dismiss.
Eric Goldman is gonna hate that.
The court also, correctly, held that just because the Lanham
Act claim was a Lanham Act claim didn’t bring it within §230’s exception for “any
law pertaining to intellectual property.” The Lanham Act covers trademarks and
false advertising; the former fall within the IP exception and the latter doesn’t.
In its recitation of the legislative history and caselaw,
the majority drops a line that is going to prove particularly destructive of (c)(2)
immunity: “What is clear to us from the statutory language, history and case
law is that the criteria for blocking online material must be based on the
characteristics of the online material, i.e. its content, and not on the
identity of the entity that produced it.” 
(What happens when a provider says “this entity has produced
objectionable content in the past and we are therefore going to screen material
from this entity”?  Does the majority
really mean that screening has to be applied on an item by item basis?  Does that mean you can’t block an entire
website, perhaps even for things that are explicitly listed in (c)(2) like violent content, unless each page has objectionable content, since blocking an entire
website focuses on the entity?  Honestly,
I can see a case for that rule—but it seems like something we should talk
about.)  Where the OSP at issue is a
host, however, the identity of the identity that produced content is a classic
publisher consideration and (c)(1) immunity should be unaffected.  Eric Goldman has identified a shift from
§230(c)(2) to (c)(1) in many situations where (c)(2) could in theory apply;
this language will only harden that shift.
Facts: Malwarebytes software searches for what it calls
Potentially Unwanted Programs (PUPs), including software that contains
“obtrusive, misleading, or deceptive advertisements, branding or search
practices.” If the user tries to download a program that Malwarebytes has
determined to be a PUP, a pop-up alert warns the user of a security risk and
advises the user to stop the download and block the potentially threatening
content. “In their first eight years as competitors, neither Enigma nor
Malwarebytes flagged the other’s software as threatening or unwanted. In late
2016, however, Malwarebytes revised its PUP-detection criteria to include any
program that, according to Malwarebytes, users did not seem to like…. Malwarebytes’s
software immediately began flagging Enigma’s most popular programs—RegHunter
and SpyHunter—as PUPs.” Enigma alleged that its programs are “legitimate”,
“highly regarded”, and “pose no security threat,” and that it’s lost customers
and goodwill from Malwarebytes’ deceptive practices.
Judge Fisher’s concurring opinion in the 9th Circuit’s
previous case considering §230(1)(c), Zango, warned that extending
immunity beyond the facts of that case could “pose serious problems,” allowing
a content provider to “block content for anticompetitive purposes or merely at
its malicious whim.” District courts have disagreed on whether Malwarebytes can
be sued for its blocking and how expansive Zango is. Allowing
Malwarebytes to block based on “anticompetitive” motives would be “contrary to
CDA’s history and purpose,” which included an express congressional aim “to
preserve the vibrant and competitive free market that presently exists for the
Internet and other interactive computer services” and to “remove disincentives
for the development and utilization of blocking and filtering technologies.”
The point was to help consumers, who “must trust that the
provider will block material consistent with that user’s desires. Users would
not reasonably anticipate providers blocking valuable online content in order
to stifle competition.” Immunizing anticompetitive blocking would therefore [?]
also conflict with the express policy of “removing disincentives for the
utilization of blocking and filtering technologies.”
However, “otherwise objectionable” was broader than the rest
of the categories in the statutory list: “obscene, lewd, lascivious, filthy,
excessively violent, harassing or otherwise objectionable.” Thus, the majority
rejected Enigma’s argument that its software has no such content, and that
Malwarebytes definitively couldn’t claim immunity for blocking it. Under
ejusdem generis, when a generic term follows specific terms, “the generic term
should be construed to reference subjects akin to those with the specific
enumeration.” But the specific categories listed in § 230(c)(2) “vary greatly:
Material that is lewd or lascivious is not necessarily similar to material that
is violent, or material that is harassing. If the enumerated categories are not
similar, they provide little or no assistance in interpreting the more general
category.”  Anyway, even if ejusdem
generis did apply, Enigma’s interpretation failed. Congress identified “harassing”
as one of the problematic categories, and spam, malware and adware are close
enough. [So if Malwarebytes  succeeds in showing that it reasonably categorized Enigma’s software as such, that’s enough to win.] But the majority wasn’t making a
final ruling on the relationship between “otherwise objectionable” and the
other listed categories. It’s merely that “if a provider’s basis for objecting
to and seeking to block materials is because those materials benefit a
competitor, the objection would not fall within any category listed in the
statute and the immunity would not apply.” Key takeaway: now we fight about what else is like “anticompetitive” and thus not legitimately “otherwise objectionable,” since the majority has left the issue open (except to the extent you think identity v. content is the holding).
Malwarebytes argued that it had legitimate reasons for its
acts and that Enigma’s programs, SpyHunter and RegHunter, use “deceptive
tactics” to scare users into believing that they have to download Enigma’s
programs to prevent their computers from being infected. This is a factual
Judge Rawlinson dissented. The CDA is broadly worded;
Congress hasn’t acted to clarify it; and the statute should be applied
according to its provisions. “[N]othing in the statutory provisions or our
majority opinion in Zango supports” limiting (c)(2) when the parties are
competitors. “The majority’s real complaint is not that the district court
construed the statute too broadly, but that the statute is written too broadly.
However, that defect, if it is a defect, is one beyond our authority to
correct.” The dissent pointed out that, although the parties in Zango weren’t
direct competitors, the plaintiff asserted similar anti-competitive effects,
but that didn’t matter there.

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