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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.
Copyright © 2007, Davis Wright Tremaine
LLP.
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