Anti-Spyware Vendor Protected by 47 USC 230(c)(2)–Zango v. Kaspersky

By Eric Goldman

Zango Inc. v. Kaspersky Lab, Inc., No. C07-0807-JCC (W.D. Wash. Aug. 28, 2007)

There has been a fair amount of hand-wringing/teeth-gnashing over the legal liability of anti-spyware vendors when they label a software program as spyware or some other synonym. On the one hand, vendors might present those labels in a way that causes consumers to overreact to the actual threat, or vendors may make factual errors, and either case can have significant adverse effects on the affected software manufacturer. On the other hand, if vendors are liable whenever software manufacturers don’t like their labels, the vendors will make labeling decisions based on risk management, not editorial criteria, and that may degrade the tool’s utility to consumers.

That’s what makes this ruling so important. The court says, clearly and unambiguously, that anti-spyware vendors’ labeling judgments are completely protected by 47 USC 230(c)(2), a statute designed to protect online filtering judgments. In support of this conclusion, the court says that:

1) Kaspersky qualifies as an interactive computer service provider (specifically, as an access software provider)

2) The labeled software does not have to be actually “objectionable;” the vendor qualifies for protection so long as it subjectively considers the software objectionable.

3) There is no “good faith” standard in the statute for the vendor’s decision to consider software objectionable.

230(c)(2) has been interpreted fairly infrequently, but a few decisions have applied it to anti-spam vendors and search engine filtering. As best I can remember, this is the first time the statute has been applied to protect anti-spyware vendors. (Am I forgetting any?). As a result of this decision, we should see a decrease in software manufacturers’ efforts to strongarm vendors into recharacterizing their software. There will still be private negotiations/discussions between vendors and software manufacturers (which is often a healthy process), but any software manufacturer’s threat to escalate the matter to litigation should be fairly empty.

This should close the book on Zango’s ill-fated legal initiative from May to change anti-spyware vendors’ characterizations of its software. Some previous coverage of those cases: Zango loses TRO against PC Tools; Zango loses TRO against Kaspersky. Yesterday, Zango announced that it voluntarily dismissed the lawsuit against PC Tools; and this ruling appears to put an emphatic end to Zango’s lawsuit against Kaspersky.