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15 May 2020

One last try to fix the Malwarebytes decision Internet

Back in 2017, Enigma Software sued competitor Malwarebytes claiming that Malwarebytes flagged Enigma's software as "Potentially Unwanted Programs" for anticomptitive reasons. (I gather Malwarebytes had good reasons to flag it but they're not relevant here.) The district court dismissed the suit on section 230 grounds that Malwarebytes found the Enigma software "otherwise objectionable" and the law gave Malwarebytes immunity from being sued.

Enigma appealed to the Ninth Circuit, which includes California and Washington, and to our surprise they won. A panel of judges voted 2-1 that:

We hold that the phrase "otherwise objectionable" does not include software that the provider finds objectionable for anticompetitive reasons.

even though the law doesn't say that. CAUCE co-signed an amicus brief with EFF supporting Malwarebytes, which we submitted to the Ninth Circuit.

This decision is bad news for the Internet. It is not hard for people affected by filtering software to make a superficially plausible argument that the filtering is somehow anticompetitive and haul fiter makers into court for expensive legal battles. Remember that in the US, each side in a court case pays its own expenses, win or lose.

Malwarebytes has appealed to the Supreme Court, and CAUCE and EFF agreed to support the appeal. It's hard to guess whether the Court will take the case but I think we have a reasonably good chance -- there is a circuit split where the 9th's opinoin disagrees with other circuits, the current Supreme Court has strong opinons that the law says only what it says, and they've always enjoyed slapping down the hippies in the 9th.

Case documents are here, including copies of the original district court opinion and 9th circuit appeal.

  posted at: 22:42 :: permanent link to this entry :: 3 comments
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