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 supported its positions. Fortunately for Malwarebytes, the California court reaches the same conclusions.

Section 230(c)(2)(B). As the Texas court held, Malwarebytes’ blocking of PC Drivers is pretty much a textbook application of Section 230(c)(2)(B)’s safe harbor for filtering instructions. PC Drivers tried four arguments to get around it:

• The safe harbor shouldn’t work on a motion to dismiss. The court cites 3 cases that have found 230(c)(2)(B) on a motion to dismiss.
• 230(c)(2)(B) doesn’t apply to click stealing. PC Drivers claims that Malwarebytes “steals” “click advertising services” by diverting PC Drivers customers to become Malwarebytes customers. This happens because Malwarebytes flagged PC Drivers’ domains as PUP sources and displays a warning to its software users when they try to access those domains. The court says the “alleged redirection in this case clearly is an action that enables or makes available the technical means to restrict access to material.” This discussion has some parallels to the alleged diversion at issue in competitive keyword advertising cases, but the court doesn’t make the linkage. The court also says 230(c)(2)(B) extends to providing screenshots and instructions on how to remove PC Drivers.
• Malwarebytes committed tortious contract interference by blocking its software even for its paying customers and making it really hard for them to keep using the software. The court says the Ninth Circuit rejected this argument in Zango v. Kaspersky.
• Its software isn’t “objectionable.” The court responds that the statute makes clear that it’s a subjective standard for objectionable.

Section 230(c)(2)(B) thus wipes out most of PC Drivers’ claims.

False Advertising. PC Drivers claims that Malwarebytes violated Lanham Act 43(a) by saying that its software is a “system optimizer” that “uses intentional false positives to convince users that their systems have problems.” The court says these are non-actionable opinions.

Trademarks. “PC Drivers contends that Malwarebytes’ use of the Marks is causing confusion by ‘deceiv[ing] the public into believing PC Drivers’ website and [P]roducts are malicious, and that Malwarebytes’ premium product is the solution to resolve any future ‘malicious’ programs.'” The court says this is a “novel” theory of trademark infringement unsupported by the precedent. Also, Malwarebytes qualifies for nominative use because its messages connoted disapproval of PC Drivers.

The court’s ruling is sensible and unsurprising given the Texas ruling. A different case against Malwarebytes, brought by Enigma, is on appeal to the Ninth Circuit. The ruling in that case should be more of the same, but if the Ninth Circuit does something goofy, this case previews the nonsense we can anticipate.

Case citation: PC Drivers Headquarters LP v. Malwarebytes Inc., 2019 WL 1061739 (N.D. Cal. March 6, 2019)

Other Posts on Malwarebytes:

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

Section 230(c)(2) Protects Anti-Malware Vendor–Enigma v. Malwarebytes

Message Board Operator May Be Liable For Moderator’s Content–Enigma v. Bleeping