9th Cir: Kaspersky Filtering Decision Protected Under Section 230
The 9th Circuit issued its opinion in Zango, Inc. v. Kaspersky Lab, Inc., affirming the district court's decision that Kaspersky's filtering decisions were protected under Section 230. (Access a copy of the order here [pdf].) I've blogged a bunch (see, e.g., here) about this case so it was fun to read the decision.
This case involved filtering decisions by Kaspersky, who makes security software, sort of like McAfee and Norton. Kaspersky's product interfered with the operation and download of Zango software (and Zango's toolbar). Zango sued in Washington state court alleging trade libel and tortious interference (etc.). Kaspersky removed. Zango sought an injunction in federal court and was denied. Ultimately, the trial court (Judge Coughenour) granted Kaspersky summary judgment, finding that Kaskpersky's decision was immunized by Section 230's "good samaritan" blocking and screening procedure. Zango appealed to the 9th Circuit. The 9th Circuit sided with Kaspersky and found that its decisions were entitled to protection under Section 230 (this is a different part of Section 230 than is typically at issue). (There were amicus briefs on both sides, which are worth checking out: on Zango's side and on Kaspersky's side (CDT/EFF).
The opinion is an easy read. The result not surprising. The decision significant because there's not a ton of cases dealing with this part of Section 230. The internet security community is probably excited, as is anyone that makes filtering/security software. The concurrence by Judge Fisher was interesting and I think equally significant. He felt that the "otherwise objectionable" language in this part of Section 230 gave companies like Kaspersky too much discretion in filtering content. Actually, he's probably not as concerned about Kaspersky. Given the expansive definition and interpretation of "interactive computer service" his concern is probably that other companies (ISPs, etc.) may use this provision to engage in anti-competitive or other problematic behavior. (That's the sense I got from a quick read through it at least.)
Brier Dudley at the Seattle Times has a piece on the decision here. I'm sure Professor Goldman will have something to say about this one.
[postscript: news reports indicated that Zango essentially shut down (see its Wikipedia entry).]
Added: I took a closer look and the court definitely grapples with the language of (c)(2). The statute protects "interactive computer services," which is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ." The italicized language presented somewhat of an issue for Kaspersky. The only server access provided by Kaspersky was when the software called home to check in and obtain updates. It's tough to fit this into the definition, since in today's day and age, a ton of programs have auto-update features. Zango raised this argument. The court rejected it, noting that "non-filtering programs such as word processors or video games would not be subject to good samaritan immunity," because they do not restrict access to objectionable material. I guess this brings us back to the second interesting issue which Judge Fisher raised in concurrence: objectionable material in whose opinion?
Like many others, I find Section 230 pretty clunky, but I think broad immunity and applicability is mostly a good thing.
Other reactions and links: Professor Goldman (the court "appeared to struggle with some of [the statute's] frayed edges"); Threat Level; BNA's E-Commerce and Tech Law.
This case involved filtering decisions by Kaspersky, who makes security software, sort of like McAfee and Norton. Kaspersky's product interfered with the operation and download of Zango software (and Zango's toolbar). Zango sued in Washington state court alleging trade libel and tortious interference (etc.). Kaspersky removed. Zango sought an injunction in federal court and was denied. Ultimately, the trial court (Judge Coughenour) granted Kaspersky summary judgment, finding that Kaskpersky's decision was immunized by Section 230's "good samaritan" blocking and screening procedure. Zango appealed to the 9th Circuit. The 9th Circuit sided with Kaspersky and found that its decisions were entitled to protection under Section 230 (this is a different part of Section 230 than is typically at issue). (There were amicus briefs on both sides, which are worth checking out: on Zango's side and on Kaspersky's side (CDT/EFF).
The opinion is an easy read. The result not surprising. The decision significant because there's not a ton of cases dealing with this part of Section 230. The internet security community is probably excited, as is anyone that makes filtering/security software. The concurrence by Judge Fisher was interesting and I think equally significant. He felt that the "otherwise objectionable" language in this part of Section 230 gave companies like Kaspersky too much discretion in filtering content. Actually, he's probably not as concerned about Kaspersky. Given the expansive definition and interpretation of "interactive computer service" his concern is probably that other companies (ISPs, etc.) may use this provision to engage in anti-competitive or other problematic behavior. (That's the sense I got from a quick read through it at least.)
Brier Dudley at the Seattle Times has a piece on the decision here. I'm sure Professor Goldman will have something to say about this one.
[postscript: news reports indicated that Zango essentially shut down (see its Wikipedia entry).]
Added: I took a closer look and the court definitely grapples with the language of (c)(2). The statute protects "interactive computer services," which is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ." The italicized language presented somewhat of an issue for Kaspersky. The only server access provided by Kaspersky was when the software called home to check in and obtain updates. It's tough to fit this into the definition, since in today's day and age, a ton of programs have auto-update features. Zango raised this argument. The court rejected it, noting that "non-filtering programs such as word processors or video games would not be subject to good samaritan immunity," because they do not restrict access to objectionable material. I guess this brings us back to the second interesting issue which Judge Fisher raised in concurrence: objectionable material in whose opinion?
Like many others, I find Section 230 pretty clunky, but I think broad immunity and applicability is mostly a good thing.
Other reactions and links: Professor Goldman (the court "appeared to struggle with some of [the statute's] frayed edges"); Threat Level; BNA's E-Commerce and Tech Law.
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