Liability for Labeling Software as Spyware

Ben Edelman’s latest research describes various efforts by software vendors to curtail characterizations of their software as spyware (or a synonym). These bigfoot letters often attempt to distort the information marketplace by forcing the removal of unflattering but potentially accurate and useful information. Unfortunately, there are very few meaningful consequences (other than bad publicity) to software vendors due to sending nasty but bogus letters. For recipients of such letters, I have been able to think of only a few causes of action that could be brought against the sender:

· If the sender actually brings a lawsuit, the defendant could have rights under anti-SLAPP laws

· If the sender sends an unsupported copyright takedown notice, there could be a claim under 17 USC 512(f). [this was used in the Diebold case]

However, should a lawsuit ever be brought, recipients might have some effective defenses:

· Characterizations of software could be an opinion protected under the First Amendment (or simply not actionable under defamation law). See the Search King v. Google, 2003 WL 21464568 (W.D. Okla. May 27, 2003) (and previous unreported decision). I think this defense has particular merit because there is no standard definition of spyware (or any of the synonyms), so merely characterizing software as spyware may not be a factual statement.

· 47 USC 230 should immunize a website for any third party characterization. This safe harbor has been used to protect against liability for third party characterizations that someone is a spammer. See OptInRealBig.com v. Ironport Systems, 2004 WL 1459337 (N.D. Cal. June 25, 2004).

I’ve opened up comments (unfortunately, to avoid comment spam, registration is required) if you have any other suggested causes of action or defenses.

My previous posts on this subject:

Comments on iDownload letter (initial and follow-up)

Microsoft’s characterization of a Dutch search engine as spyware (initial and follow-up)