Metropolitan News-Enterprise


Friday, June 26, 2009


Page 1


Court: No Tort Liability for Web Filter Program Distributor


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that a distributor of Internet security software is entitled to immunity, under the safe harbor provision of the Communications Decency Act, from a suit claiming that its software interfered with the use of downloadable programs by customers of an online media company

Affirming the decision of U.S. District Court Judge John C. Coughenour of the Western District of Washington, the panel held that Kaspersky Lab Inc.—the American distributor of the “Kaspersky Internet Security” and “Kaspersky Anti-Virus” programs—could not be held liable for any actions it took to make the technical means to restrict access to objectionable material available to others.

 Zango Inc., an on-line company that provides access to a catalog of online videos, games, music, tools, and utilities to consumers who agree to view advertisements while they browse the Internet, filed suit against Kaspersky Lab alleging that the Kaspersky programs were blocking operation of Zango’s software on users’ computers.

The Kaspersky software was designed to filter and block unwanted malicious software, known as “malware,” that can compromise the security and functionality of a computer. As it classified Zango’s programs as a type of malware, it prevented Zango’s software from displaying links to advertisers’ websites in users’ Internet browser pages, Zango claimed.

Additionally, each time the Zango program attempted to access the Internet, the Kaspersky software caused a warning to be displayed giving the computer user the option to either block the Zango program or “skip” the warning. While this warning included an “apply to all” checkbox that presumably would stop the repeated warnings if the user opted to “skip” and selected “apply to all,” Zango averred that the checkbox does not work and Zango users running the Kaspersky programs were therefore subjected to near constant warnings unless they allowed the Kaspersky software to block the Zango program.

The Kaspersky programs also displayed a “Web Anti-Virus Warning” advising users attempting to download the Zango software from proceeding. Although users could override the warning, a second warning would then appear stating that the Zango software could not be disinfected and that “write access is denied,” Zango claimed, which makes installation of the Zango software impossible.

Zango attributed a decline in the number of its customers between March 2 and June 2007 to interference with Zango software by the Kaspersky software and by other anti-spyware software that similarly blocked the operation of the Zango program in its complaint, filed in Washington state court, advancing claims for injunctive relief, tortious interference with contractual rights, violation of the Washington Consumer Protection Act, trade libel, and unjust enrichment.

After Kaspersky removed the case to federal court, the district court denied Zango’s request for a temporary restraining order, and Kaspersky subsequently filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), which the parties and the court treated as a motion summary judgment. Summary judgment was then granted on the ground that Kaspersky was entitled to immunity.

Zango argued that Congress intended statutory immunity under the act to apply to Internet content providers, not to companies that provide filtering tools, but Judge Pamela Ann Rymer disagreed in her opinion for the appellate court.

The act provides protection for “‘good samaritan’ blocking and screening of offensive material,” by any “provider or user of an interactive computer service.” An “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…,”and an “access software provider” is defined in part as “a provider of software…enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content.”

Based on the plain language of the statues, Rymer reasoned that a provider of software that permits users to control access to materials that the user or providers considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable may not be held liable for any action taken to make that software available, so long as the provider enables access by multiple users to a computer server.

Noting that the Kaspersky software was designed to communicate via the Internet with online databases and update services that Kaspersky’s Russian affiliate operated in Moscow, Rymer concluded that Kaspersky was a “provider” of an “interactive computer service” that “enabled computer access by multiple users to a computer server” as required by the act.

 As users choose to purchase, install, and utilize the Kaspersky software, Rymer posited that even if the programs did not provide users with the ability to override the security software and download and use Zango’s software,  Kaspersky still “made available” for its users the technical means to restrict access to items that it defined as malware and that according protection to the providers such malware filtering programs was consistent with the legislative history and congressional goals for immunity articulated in the act.

Senior Judge Betty B. Fletcher joined Rymer in her opinion, and Raymond C. Fisher separately concurred.

Fisher expressed concern with extending immunity beyond the specific facts presented in this case, suggesting that “under the generous coverage of § 230(c)(2)(B)’s immunity language, a blocking software provider might abuse that immunity to block content for anticompetitive purposes or merely at its malicious whim…” and then “hide behind § 230(c)(2)(B) when the competitor seeks to recover damages.”

But “until Congress clarifies the statute or a future litigant makes the case for a possible limitation,” Fisher agreed, Kaspersky qualified for immunity.

The case is Zango, Inc. v. Kaspersky Lab Inc., 07-35800.


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