How Section 230 might not help Amazon in the Parler lawsuit

Parler sued Amazon [PDF of complaint] yesterday alleging three things: antitrust violations, breach of contract and tortious interference. Each of these claims relates to Amazon’s decision to kick Parler off of AWS servers. To use Section 230’s language, Amazon took action to “restrict access to or availability of material.” That language comes from Section 230(c)(2), which reads more fully as: No provider . . . of an interactive computer service shall be held liable on account of . . . any acti...
Tags: Amazon, Law, Chicago, Computer Fraud and Abuse Act, Ninth Circuit, Said, CFAA, Evan Brown, Section 230, Parler, Malwarebytes Inc, Computer Crime, Enigma Software Group USA LLC

Justice Thomas Writes a Misguided Anti-Section 230 Statement “Without the Benefit of Briefing”–Enigma v. Malwarebytes

Last year, the Ninth Circuit ruled that a plaintiff could plead around Section 230(c)(2)(B), the safe harbor for providing filtering instructions, by claiming that the filtering was motivated by anticompetitive animus. Last week, the Supreme Court denied certiorari. This isn’t surprising–the Supreme Court takes a low percentage of cases–but it’s too bad the Ninth Circuit ruling won’t be corrected. Alongside the cert denial, Justice Thomas added a statement railing against Section 230 (starting...
Tags: Google, Twitter, Fcc, Supreme Court, Yahoo, Law, Congress, Youtube, New York Times, Vimeo, Enigma, DOE, Malwarebytes, Wilson, Thomas, Lewis

Petitions of the week

This week we highlight petitions pending before the Supreme Court that ask the court to decide, among other things, whether evidence of how other departments of corrections have obtained and successfully administered an alternative execution method is relevant to showing the method is feasible and available under Glossip v. Gross, whether the Sixth and 14th Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party and wh...
Tags: Supreme Court, Law, Gross, Colorado, Idaho, Michigan, Jordan, Nevada, Summers, Perez, Walden, Georgia Department of Corrections, Glossip, Phipps, Cases in the Pipeline, Malwarebytes Inc

Internet Law at the Supreme Court

Although I love teaching patent law, my favorite class to teach is often Internet Law. This next year I’ll be teaching it both to law students and as a sophomore-level undergraduate class. One thing that is great about the class is that all of the students already have a set of preconceived notions about how internet society should work, but without much information about the legal background. Here are three cases Supreme Court petitions that I’ve been following that are closely related to civil...
Tags: Facebook, Supreme Court, Law, Obama, Linkedin, University, Republican Party, Patent, Trump, Hunt, 9th Circuit, Board of Regents, University of New Mexico, UNM, CDA, Twitter Google

Section 230 Protects Classifying Non-Competitive Software as a Threat–Asurvio v. Malwarebytes

photo by Anik Shrestha, https://www.flickr.com/photos/anikshrestha/ Section 230(c)(2)(B) says that filtering software makers aren’t liable for their classification decisions. This proposition provides the legal foundation for the anti-threat software industry. However, those expectations were disrupted by the Ninth Circuit’s 2019 in Enigma v. Malwarebytes, which held that Section 230(c)(2)(B) didn’t apply when a plaintiff alleges that the filtering decision was motivated by anticompetitive anim...
Tags: Law, Court, Marketing, Enigma, Circuit, Malwarebytes, Ninth Circuit, Content Regulation, Derivative Liability, Bleeping Computer, Adware/Spyware, Malwarebytes Inc, Anik Shrestha, Asurvio LP, Asurvio

Malware detection software provider gets important victory allowing it to flag unwanted driver installer

Despite a recent Ninth Circuit decision denying immunity to malware detection software for targeting competitor’s software, court holds that Section 230 protected Malwarebytes from liability for designating software driver program as potentially unwanted program. Plaintiff provided software that works in real time in the background of the operating system to optimize processing and locate and install missing and outdated software drivers. Defendant provided malware detection software de...
Tags: Law, Goldman, Malwarebytes, Ninth Circuit, Section 230, Malwarebytes Inc, Tortious Interference, Enigma Software Group USA LLC, Though Enigma, Asurvio LP

Ninth Circuit Doubles Down on Bad Ruling That Undermines Cybersecurity–Enigma v. Malwarebytes

This PUP Is definitely having a bad day after this ruling.photo by Anik Shrestha, https://www.flickr.com/photos/anikshrestha/ This case involves rival makers of anti-threat software. The defendant, Malwarebytes, classified its rival’s software as a PUP, or Potentially Unwanted Program. The rival sued. Malwarebytes defended on 47 USC 230(c)(2)(B), which provides a safe harbor for filtering software. Malwarebytes won on that ground in the district court. Then, in a troubling ruling that broke wit...
Tags: Law, Congress, Enigma, Usc, Malwarebytes, US supreme court, District, Ninth Circuit, Venkat, Derivative Liability, Rebecca Tushnet, Adware/Spyware, Malwarebytes Inc, Anik Shrestha, Enigma Software, Bleeping Computer Blog

Terrible Ninth Circuit 230(c)(2) Ruling Will Make the Internet More Dangerous–Enigma v. Malwarebytes

This ruling caused this PUP to have a bad day. Photo by Anik Shrestha The Ninth Circuit has issued a Section 230(c)(2) opinion that creates significant problems for anti-spyware/spam/virus vendors (I’ll call them “anti-threat vendors”). The ruling will paralyze their decision-making, expose them to greater legal threats, and reduce their ability to protect consumers from unwanted software. This ruling makes the Internet less safe. I hope the Ninth Circuit will fix it via further proceedings. Ba...
Tags: Google, Law, Congress, Court, US, Rebecca, Margaret Thatcher, Kaspersky, Enigma, Malwarebytes, Privacy/security, Carter, 9th Circuit, Fisher, Congressional, Ninth Circuit

Filtering Software Defeats Another Lawsuit–PC Drivers v. Malwarebytes

Unlike shady software, this is a good PUP. by Anik Shrestha, https://www.flickr.com/photos/anikshrestha/ I blogged about this case in September. PC Drivers makes software that claims to help speed up users’ computers. Malwarebytes blocked it as a “potentially unwanted program,” or PUP. Litigation ensued. In the prior ruling, Malwarebytes won big, but then unexpectedly asked the judge to transfer the litigation from Texas to California rather than close out the case with a judge who already supp...
Tags: Texas, Law, California, Kaspersky, Enigma, Trademark, Malwarebytes, Ninth Circuit, Derivative Liability, Bleeping, Zango, Adware/Spyware, Malwarebytes Inc, Anik Shrestha, PC Drivers Headquarters LP, Malwarebytes Message Board Operator

Section 230 Helps Malware Vendor Avoid Liability for Blocking Decision–PC Drivers v. Malwarebytes

I’d rather post cat photos, but this blog post is about PUPs [photo by Anik Shrestha, https://www.flickr.com/photos/anikshrestha/] We rarely see cases like this any more, so I think it’s worth blogging this April ruling even though it just showed up in Westlaw. PC Drivers makes software designed to speed up users’ computers, an industry niche that’s known to be filled with sketchy vendors. Malwarebytes makes anti-malware software. Malwarebytes labeled PC Drivers’ software as a “potentially unw...
Tags: Law, Marketing, Kaspersky, Enigma, Trademark, Malwarebytes, 9th Circuit, Northern District of California, Derivative Liability, Zango, Adware/Spyware, Malwarebytes Inc, Anik Shrestha, Westlaw PC Drivers, Trademark Infringement PC Drivers, PC Drivers Headquarters LP

Anti-malware provider immune under CDA for calling competitor’s product a security threat

Plaintiff anti-malware software provider sued defendant – who also provides software that protects internet users from malware, adware etc. – bringing claims for false advertising under the Section 43(a) of Lanham Act, as well as other business torts. Plaintiff claimed that defendant wrongfully revised its software’s criteria to identify plaintiff’s software as a security threat when, according to plaintiff, its software is “legitimate” and posed no threat to users’ computers. Defendant moved t...
Tags: Law, Chicago, Kaspersky, Evan, Ninth Circuit, CDA, Immunity, Evan Brown, Section 230, Unfair Competition, Enigma Software Group, Zango Inc, Malwarebytes Inc