7Search Sues McAfee For Red Flagging It
By Eric Goldman
I don’t have a good sense of how many lawsuits have been filed against anti-spyware vendors for classifying third party software as “adware” or “spyware.” I’ve blogged on a few (including Kaspersky, PC Tools and Symantec v. Hotbar), and Ben Edelman maintains a larger catalog of such lawsuits (not sure how up-to-date this is). However, I don’t know if these lawsuits are relatively rare (as Ben’s chart implies) or if they are multitudinous but most quietly fly under the radar screen.
If there aren’t many unpublicized lawsuits, that may reflect that suing an anti-spyware vendor over its classification decisions almost never makes sense. First, many vendors have a private adjudicatory/appellate process that resolves many potential disputes without a lawsuit. Certainly, most vendors don’t want to make errors, which undermines their own credibility, and most reputable vendors want to fix their mistakes. Second, lawsuits bring generally unwanted publicity to the plaintiff, calling extra attention to their alleged deficiencies and bringing out all of the gripers. Third, the costs of the lawsuit may be more than the value of any frustrated transactions. Finally, many of the lawsuits have low probabilities of legal success for the reasons I’ll discuss in a moment. So there is good reason to believe classification-related lawsuits such as this one are rare. (I’m not saying that grumbles or C&Ds are rare; I’m just referring to formal lawsuits).
In this lawsuit, 7Search says that it was in the toolbar business but stopped offering downloads from its site in 2003. However, McAfee’s SiteAdviser gives 7Search the big red X and says “Feedback from credible users suggests that downloads on this site may contain what some people would consider adware, spyware, or other potentially unwanted programs.” 7Search claims that this statement is false because it isn’t offering any downloads at all. 7Search thus alleges false advertising (Lanham 43(a)), deceptive trade practices, defamation and unfair competition.
The most obvious barrier to 7Search’s lawsuit is 47 USC 230. Both (c)(1) and (c)(2) could be implicated. (c)(1) is less likely, but if in fact McAfee is republishing information from third parties (as suggested by the statement’s reference to “credible users”), they may be able to claim (c)(1) for the republication. Either way, (c)(2)–the immunization for filtering decisions–is directly on point and potentially immediately fatal to the lawsuit. Zango’s lawsuit against Kaspersky was soundly and quickly knocked out on 230(c)(2) grounds (though that is now on appeal to the Ninth Circuit), and a district court in Illinois gave broad deference to the Zango ruling in finding that Comcast could claim 230(c)(2) for email filtering decisions.
At the same time, 7Search alleges that McAfee’s classifications were in bad faith. If so, then 230(c)(2) wouldn’t apply even under the liberal Kaspersky or Comcast approaches, both of which required subjective good faith. We’ll have to see how McAfee responds to determine if 7Search’s allegation has any chance of getting traction.
There are two other possible holes in the potential 230 coverage for this lawsuit. First, courts have been inconsistent whether a false advertising 43(a) claim under the Lanham Act fits within the “IP” exclusion to 230. Second, most of 7Search’s gripe goes to McAfee’s statement that bad downloads are available–words chosen by McAfee to describe its filtering decision. It remains unclear if 230(c)(2) protects an intermediary’s characterization of its filtering decision as much as it protects the filtering decision itself–just like 230(c)(1) may protect against liability for third party information but may not protect against marketing representations rendered untrue by third party content or actions.
In any case, I think this lawsuit and others over classification decisions raise interesting and important issues that I plan to explore in my Economics of Reputational Information project. We want skillful intermediaries to digest the overwhelming amount of information available in the marketplace and make reputational judgments that speed up our consumer decision-making. On that basis, we definitely don’t want reputational judgments removed from marketplace actors and put into the hands of the judges. However, we also want the reputational intermediaries to make factually accurate judgments because their misjudgments also could distort marketplace decision-making.