Thursday, September 27, 2018

Another malware misattribution claim fails

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 2018 WL 2996897, No. 18-CV-234-RP (W.D. Tex. Apr. 23, 2018)

PC Drivers “offers software designed to help customers optimize the processing speed of their computers and identify software drivers ready to be updated.” Malwarebytes sells software that blocks various programs on its customers’ computers, including software deemed malicious or potentially unwanted (the latter of which are called PUPs). PC Drivers contends that, in January 2018, Malwarebytes inappropriately branded one or more of its programs as a PUP, which can make PC Drivers’ software inoperable and block access to PC Drivers’ website. This happened before, and when the software received certification from a newly developed third-party certifier called AppEsteem, Malwarebytes stopped labeling the programs as PUPs. PC Drivers alleged that it continues to carry AppEsteem certification and that its programs have not changed substantially.  PC Drivers sued for false advertising, trademark infringement [what?], trademark dilution, tortious interference with contractual relations; promissory estoppel; and related claims.  (Similar litigation against Malwarebytes discussed here: §230 blocked liability.)

The court declined to grant a preliminary injunction, despite evidence that Malwarebytes has not been cooperative with PC Drivers as PC Drivers has attempted to figure out the problem. PC Drivers also argued that it was the victim of an act of retaliation taken by Malwarebytes against AppEsteem in response to AppEsteem’s threat to list Malwarebytes as a “deceptor.” But that wasn’t enough.

Malwarebytes argued that §230’s statutory Good Samaritan protection for blocking and screening of offensive material rendered it immune to all these claims.

PC Drivers argued that Malwarebytes wasn’t an “interactive computer service” under the statute, but it was, because the phrase is to be broadly applied using the definition “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server ....” Malwarebytes “provide[s] users with access to the new malware definition content that is available on its servers.”

PC Drivers also argued that the immunity didn’t apply to Malwarebytes’ own statements, but “this requirement is present only in § 230(c)(1).”  I’m not sure this is responsive: Malwarebytes might be immune for the blocking and any consequences proximately caused by the blocking itself, but not immune for things it said about the blocking, which could independently cause damage.

Finally, PC Drivers alleged that Malwarebytes did not act in good faith. But § 230(c)(2)(A)’s good-faith requirement (for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”) doesn’t extend to § 230(c)(2)(B) (“any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph [A]”) under the statute.

Malwarebytes argued that PC Drivers’ federal unfair competition claim fell under the safe harbor because it wasn’t an IP claim. “Although the specific provision does not address intellectual property, it is a part of the Lanham Act, which as a whole ‘pertain[s] to intellectual property,’” so some courts call all 43(a) claims clawed back from §230 immunity, while others don’t. The court didn’t resolve the issue because there was no likely success on the merits regardless.

PC Drivers alleged that Malwarebyte’s designation of PC Drivers’ software as a PUP was misleading. But this wasn’t false: the designation “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,” and “unwanted” “looks more like a subjective opinion than a factual assertion.”

Dilution: There was no evidence of fame.

Infringement: PC Drivers alleged that there was likely confusion about association, authorization, endorsement, affiliation, or sponsorship. Understating the matter, “the Court notes that this claim is strange when viewed in conjunction with PC Drivers’ other claims.” Malwarebytes invoked nominative fair use. There was no evidence that Malwarebytes used PC Drivers’ mark in any way other than listing the name of the website to explain what it is blocking. The PUP label “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.” There was only one reference: to the domain name It was unclear how Malwarebytes could the user of the name of the website it was blocking without using the domain name. [Another case where “use as a mark” would also be useful to explain why this is ok.]

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