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


I’d rather post cat photos, but this blog post is about PUPs [photo by Anik Shrestha,]

We rarely see cases like this any more, so I think it’s worth blogging this April ruling even though it just showed up in Westlaw.

PC Drivers makes software designed to speed up users’ computers, an industry niche that’s known to be filled with sketchy vendors. Malwarebytes makes anti-malware software. Malwarebytes labeled PC Drivers’ software as a “potentially unwanted program,” or PUP. Depending on users’ configuration of Malwarebytes, the PUP label disabled PC Drivers’ software and blocked access to its website. PC Drivers sued Malwarebytes for 10 claims, then moved for a preliminary injunction, which the court denied.

Section 230(c)(2)(B)

This case resembles the 9th Circuit’s Zango v. Kaspersky decision from 2009, which held that Section 230(c)(2)(B) protected Kaspersky’s blockage of Zango’s adware. That ruling functionally ended lawsuits by blocked software against anti-malware/virus software makers, which makes this lawsuit a throwback.

PC Drivers made 3 arguments to get around 230(c)(2)(B):

  • Malwarebytes isn’t a provider/user of an interactive computer service. The Zango ruling held that Kaspersky qualified because its software pinged its central servers for updated listings of blocked programs. This court agreed.
  • Malwarebytes isn’t publishing third party content. The court correctly says third party content is relevant only to 230(c)(1), not 230(c)(2)(B).
  • Malwarebytes lacked good faith. The court correctly says “good faith” isn’t an element of 230(c)(2)(B), though it does show up in 230(c)(A).

Thus, Section 230(c)(2)(B) preempts all of PC Drivers’ non-IP claims.

Lanham Act False Advertising (43(a))

The court sidesteps whether a 43(a) claim is an “IP” claim for 230 purposes (courts have split on that question). Instead, the court says there’s no false statement of fact:

The designation itself—“potentially unwanted program”—inherently carries with it the acknowledgment that it is only a guess as to whether the program is or is not unwanted, as made clear by the inclusion of the word “potentially.” Moreover, the descriptor “unwanted” looks more like a subjective opinion than a factual assertion.

Trademark Infringement

PC Drivers claimed that referencing its software caused consumers to think that Malwarebytes endorsed or sponsored its products. The court correctly calls this “strange” argument:

PC Drivers has not produced evidence suggesting that Malwarebytes has used PC Drivers’ mark in any way other than listing the name of the website to explain what it is blocking. There is no evidence that suggests affiliation, sponsorship, or endorsement by PC Drivers. Indeed, Malwarebytes’ use of the label “potentially unwanted program” to describe PC Drivers’ products implies anything but endorsement; customers told by Malwarebytes that PC Drivers’ software might be unwanted are not likely to think that PC Drivers endorses Malwarebytes.

The court concludes that Malwarebytes’ usage qualifies as nominative use: “Malwarebytes is informing the user of the name of the website it is blocking; it is unclear how it could do so without using the domain name.”

After the Ruling

This is a complete win for Malwarebytes. The court understood the situation perfectly and made several clearly correct rulings. Thus, it seems like Malwarebytes is well-positioned to dismiss the case.

In an unexpected twist, AFTER this denial of the request for a preliminary injunction, Malwarebytes moved to transfer the case to its home court of Northern District of California. I’m sure there are good reasons for this, but I’m a little surprised Malwarebytes would want to change judges after such a decisive ruling in its favor. Either way, the facts and law are on Malwarebytes’ side, so perhaps victory is inevitable no matter where the case is heard.

Case citation: PC Drivers Headquarters LP v. Malwarebytes Inc., 2018 WL 2996897 (W.D. Tex. April 23, 2018)

Other Posts on 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