Privacy and Security Advisory
Federal Court Dismisses Suit by Alleged
Malware Vendor
By Bruce
E.H. Johnson, John
D. Seiver, Ronald
G. London and Sarah
K. Duran
[September 2007]
In Zango, Inc. v. Kaspersky Lab, Inc., No.
C07-0807-JCC (Aug. 28, 2007), the United States District Court for
the Western District of Washington dismissed a lawsuit filed by
Zango, Inc., against Kaspersky Lab, Inc., a company that distributes
computer anti-virus/anti-malware software that had targeted Zango’s
products as objectionable. Zango alleged that Kaspersky Lab’s
anti-virus software improperly identified Zango’s websites
and ads as malware and alleged tortious interference with contract
and business expectancy, trade libel, violation of Washington state’s
Consumer Protection Act and unjust enrichment. The court rejected
Zango’s claims and held that Kapersky was entitled to the
safe harbor provided in Section 230(c)(2) of the Communications
Decency Act (CDA), 47 U.S.C. § 230(c)(2).
The CDA’s safe harbor protects providers and users of interactive
computer services for “action voluntarily taken in good faith
to restrict access to or availability of material that the provider
or user considers … objectionable” and for “action
taken to enable or make available to information content providers
or others the technical means to restrict access to [such] material.”
The court interpreted the CDA’s safe harbor to be quite broad
and cited other courts’ labeling of immunity (in other Section
230 contexts) as “quite robust.” The court also read
broadly the requirement that immunity is afforded to a “provider”
of “interactive computer service,” finding Kaspersky
to be an “access software provider” that “provides
or enables computer access by multiple users to a computer server.”
Indeed, the court found that Kaspersky's “anti-malware software
is exactly the type” contemplated by the CDA as enabling users
to filter, screen, allow and/or disallow content that the safe harbor
was designed to facilitate blocking.
The court rejected Zango’s argument that it does not provide
“objectionable material” within the meaning of the safe
harbor. It held that the statute does not require that the material
actually be objectionable, but rather only that the provider
or user of the software or service deems such material
objectionable. In this regard, it was noted there was no question
that Kaspersky considered Zango’s software objectionable.
Finally, the court rejected Zango’s argument that Kaspersky
lost immunity by allegedly acting in bad faith, blocking Zango as
part of a “scare campaign intended to generate additional
interest in [Kaspersky's] software.” The court distinguished
between the safe harbor afforded for actions “to restrict
access to or availability of material that the provider or user
considers to be … objectionable,” which has an explicitly
stated good-faith requirement, and actions “to enable or make
available … the technical means to restrict access”
to such material, which does not include any good-faith condition.
Because Kaspersky’s efforts fell within the latter, the court
found, it held it was under no duty to act in good faith. However,
the court held that “even if there was a good faith requirement,”
Zango’s “mere conclusory assertion of bad faith, without
more, would be insufficient to withstand summary judgment.”
This decision is significant in several regards. The court dismissed
all of Zango’s claims as a matter of law and refused Zango
the opportunity to conduct discovery. This dismissal suggests that
vendors and distributors of anti-malware products and services can
claim an absolute immunity, even against allegations of bad faith,
to communicate with their customers about potential adware and spyware
risks and even to facilitate consumer decisions about software installed
by third parties on their computers, without incurring liability
to the producers and distributors of the software. This “safe
harbor” extends, by its terms, to Internet service providers
(ISPs).
If there is no good faith requirement for providing anti-malware
software to consumers or enabling them to block what they deem unacceptable,
future Zango-type lawsuits will become less attractive. As a general
proposition, other courts following the broad reading that this
court affords the CDA safe harbor will make the prospect of similar
litigation less likely, and at a minimum reduce the cost of defending
any such cases.
Davis Wright Tremaine LLP was co-counsel for Kaspersky in the case.
For more information,
please contact:
This advisory is a publication of the Privacy/Security and Communications
Groups of Davis Wright Tremaine LLP. Our purpose in publishing this
advisory is to inform our clients and friends of recent legal developments.
It is not intended, nor should it be used, as a substitute for specific
legal advice as legal counsel may only be given in response to inquiries
regarding particular situations. Attorney advertising. Prior results
do not guarantee a similar outcome.
Copyright © 2007, Davis Wright Tremaine
LLP.
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