throbber
APPENDIX
`APPENDIX
`
`

`

`1a
`APPENDIX A
`_________
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`_________
`No. 17-17351
`_________
`ENIGMA SOFTWARE GROUP USA, LLC,
`Plaintiff-Appellant,
`
`v.
`
`MALWAREBYTES, INC.,
`Defendant-Appellee.
`
`_________
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted February 15, 2019
`San Francisco, California
`
`Filed September 12, 2019
`Amended December 31, 2019
`
`Before: Mary M. Schroeder and Johnnie B.
`Rawlinson, Circuit Judges, and Robert S. Lasnik,*
`District Judge.
`
`Opinion by Judge SCHROEDER
`Dissent by Judge RAWLINSON
`
`* The Honorable Robert S. Lasnik, United States District
`Judge for the Western District of Washington, sitting by
`designation.
`
`

`

`2a
`
`SUMMARY**
`
`Communications Decency Act
`
`The panel filed (1) an order withdrawing its
`opinion and replacing the opinion with an amended
`opinion, denying a petition for panel rehearing, and
`denying on behalf of the court a petition for
`rehearing en banc; and (2) an amended opinion
`reversing the district court’s dismissal, as barred by
`§ 230 of the Communications Decency Act, of claims
`under New York law and the Lanham Act’s false
`advertising provision.
`
`Enigma Software Group USA, LLC, and
`Malwarebytes, Inc., were providers of software that
`helped internet users to filter unwanted content from
`their computers. Enigma alleged that Malwarebytes
`configured its software to block users from accessing
`Enigma’s software in order to divert Enigma’s
`customers.
`
`Section 230, the so-called “Good Samaritan”
`provision of the Communications Decency Act,
`immunizes software providers from liability for
`actions taken to help users block certain types of
`unwanted online material, including material that is
`of a violent or sexual nature or is “otherwise
`objectionable.” Distinguishing Zango,
`Inc.
`v.
`Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009),
`
`** This summary constitutes no part of the opinion of the
`court. It has been prepared by court staff for the convenience of
`the reader.
`
`

`

`3a
`“otherwise
`that
`the phrase
`the panel held
`objectionable” does not include software that the
`provider
`finds objectionable
`for anticompetitive
`reasons. As to the state-law claims, the panel held
`that Enigma’s allegations of anticompetitive animus
`were sufficient to withstand dismissal. As to the
`federal claim, the panel further held that § 230’s
`exception for intellectual property claims did not
`apply because this false advertising claim did not
`relate to trademarks or any other type of intellectual
`property. The panel remanded the case for further
`proceedings.
`
`Dissenting, Judge Rawlinson wrote that § 230 is
`broadly worded, and Enigma did not persuasively
`make a case for limitation of the statute beyond its
`provisions.
`
`COUNSEL
`
`Terry Budd (argued), Budd Law PLLC, Wexford,
`Pennsylvania; Christopher M. Verdini and Anna
`Shabalov,
`K&L
`Gates
`LLP,
`Pittsburgh,
`Pennsylvania; Edward P. Sangster, K&L Gates LLP,
`San Francisco, California; for Plaintiff-Appellant.
`
`Tyler G. Newby (argued), Guinevere L. Jobson, and
`Sapna Mehta, Fenwick & West LLP, San Francisco,
`California; Benjamin A. Field, Neal Kumar Katyal,
`and Reedy Swanson, Hogan Lovells US LLP,
`Washington, D.C; for Defendant-Appellee.
`
`Sophia Cope and Aaron Mackey, Electronic Frontier
`Foundation, San Francisco, California, for Amici
`Curiae Electronic Frontier Foundation and CAUCE
`North America.
`
`

`

`4a
`Venkat Balasubramani, Focal PLLC, Seattle,
`Washington; Eric Goldman, Professor; Jess Miers,
`Law Student; Santa Clara University School of Law,
`Santa Clara, California; for Amici Curiae
`Cybersecurity Law Professors.
`
`Anna-Rose Mathieson and Charles Kagay, California
`Appellate Law Group LLP, San Francisco,
`California, for Amicus Curiae ESET, LLC.
`
`Brian M. Willen, Wilson Sonsini Goodrich & Rosati,
`New York, New York; Lauren Gallo White, Wilson
`Sonsini Goodrich & Rosati, San Francisco,
`California; for Amicus Curiae Internet Association.
`
`ORDER
`
`The opinion filed September 12, 2019 (Docket
`Entry No. 42), and appearing at 938 F.3d 1026, is
`withdrawn and replaced by an amended opinion
`concurrently filed with this order.
`
`With these amendments, Judge Rawlinson voted to
`grant the petition for panel rehearing. Judges
`Schroeder and Lasnik voted to deny the petition for
`panel rehearing. Judge Rawlinson voted to grant the
`petition for rehearing en banc. Judges Schroeder and
`Lasnik recommended denying the petition
`for
`rehearing en banc.
`
`The full court has been advised of the petition for
`rehearing en banc and no judge has requested a vote
`on whether to rehear the matter en banc. Fed. R.
`App. P. 35.
`
`for
`for rehearing and petition
`The petition
`rehearing en banc are DENIED. No further petitions
`
`

`

`5a
`for rehearing or rehearing en banc will be
`entertained.
`
`OPINION
`
`SCHROEDER, Circuit Judge:
`
`OVERVIEW
`
`This dispute concerns § 230, the so-called “Good
`Samaritan” provision of
`the Communications
`Decency Act of 1996, enacted primarily to protect
`minors from harmful online viewing. The provision
`immunizes
`computer-software
`providers
`from
`liability for actions taken to help users block certain
`types of unwanted, online material. The provision
`expressly describes material of a violent or sexual
`nature, but also includes a catchall for material that
`is “otherwise objectionable.” 47 U.S.C. § 230(c)(2). We
`have previously recognized that the provision
`establishes a subjective standard whereby internet
`users and software providers decide what online
`material is objectionable. See Zango Inc. v. Kaspersky
`Lab, Inc., 568 F.3d 1169, 1173 (9th Cir. 2009).
`
`The parties to this dispute are both providers of
`software that help internet users filter unwanted
`content from their computers. Plaintiff-Appellant
`Enigma Software Group USA, LLC has alleged
`violations of New York state law and a violation of
`the Lanham Act’s false advertising provision. Each
`claim is based on the allegation that defendant,
`Malwarebytes Inc., has configured its software to
`block users from accessing Enigma’s software in
`order to divert Enigma’s customers. The district
`court, relying on Zango, dismissed the action as
`
`

`

`6a
`barred by § 230’s broad recognition of immunity. We
`did not hold in Zango, however, that the immunity
`was limitless.
`
`This case differs from Zango in that here the
`parties are competitors. In this appeal Enigma
`contends that the “otherwise objectionable” catchall
`is not broad enough to encompass a provider’s
`objection to a rival’s software in order to suppress
`competition. Enigma points to Judge Fisher’s
`concurrence in Zango warning against an overly
`expansive interpretation of the provision that could
`lead to anticompetitive results. We heed that
`warning and reverse the district court’s decision that
`read Zango to require such an interpretation. We
`hold that the phrase “otherwise objectionable” does
`not
`include software that the provider
`finds
`objectionable for anticompetitive reasons.
`
`Malwarebytes contends that it had legitimate
`reasons for finding Enigma’s software objectionable
`apart from any anticompetitive effect, and that
`immunity should therefore apply on Enigma’s state-
`law claims, even if the district court erred in its
`interpretation of Zango. We conclude, however, that
`Enigma’s allegations of anticompetitive animus are
`sufficient to withstand dismissal.
`
`Enigma’s federal claim warrants an additional
`analytical step. The CDA’s immunity provision
`contains an exception
`for
`intellectual property
`claims, stating that “[n]othing in this section shall be
`construed to limit or expand any law pertaining to
`intellectual property.” 47 U.S.C. § 230(e)(2). Enigma
`has brought a false advertising claim under the
`Lanham Act, a federal statute that deals with
`
`

`

`7a
`false
`the
`that
`trademarks. Enigma contends
`advertising claim is one “pertaining to intellectual
`property” and thus outside the scope of § 230
`immunity.
`
`Although it is true that the Lanham Act itself deals
`with intellectual property, i.e. trademarks, Enigma’s
`false advertising claim does not relate to trademarks
`or any other type of intellectual property. The
`district court therefore correctly held that the
`intellectual property exception to immunity does not
`apply to the false advertising claim. The district
`court went on to hold that under Zango’s application
`of § 230 immunity, Malwarebytes was immune from
`liability for false advertising. As with Enigma’s state
`law claims, we hold that the district court read
`Zango too broadly in dismissing the federal claim.
`We therefore reverse the judgment on this claim as
`well.
`
`STATUTORY BACKGROUND
`
`This appeal centers on the immunity provision
`contained in § 230(c)(2) of the Communications
`Decency Act (“CDA”), 47 U.S.C. § 230(c)(1996). The
`CDA, which was enacted as part of
`the
`Telecommunications Act of 1996, contains this “Good
`Samaritan” provision that, in subparagraph B,
`immunizes internet-service providers from liability
`for giving internet users the technical means to
`restrict access to the types of material described in
`the subparagraph A. Id. § 230(c)(2)(B). The material,
`as described in that subparagraph, is “material that
`the provider or user considers to be obscene, lewd,
`
`

`

`8a
`lascivious, filthy, excessively violent, harassing, or
`otherwise objectionable.” Id. § 230(c)(2)(A).1
`
`This grant of immunity dates back to the early
`days of the internet when concerns first arose about
`children being able to access online pornography.
`Parents could not program their computers to block
`online pornography, and this was at least partially
`due to a combination of trial court decisions in New
`York that had deterred the creation of online-
`filtration efforts. In the first case, Cubby, Inc. v.
`CompuServe, Inc., a federal court held that passive
`providers of online services and content were not
`charged with knowledge of, or responsibility for, the
`content on their network. See 776 F. Supp. 135, 139–
`43 (S.D.N.Y. 1991). Therefore, if a provider remained
`passive and uninvolved
`in filtering third-party
`material from its network, the provider could not be
`
`1 Section 230(c) is entitled “Protection for ‘Good Samaritan’
`blocking and screening of offensive material.” The relevant
`subsection (2), “Civil liability,” states, in full, as follows:
`
`“No provider or user of an interactive computer service
`shall be held liable on account of –
`
`(A) 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; or
`
`(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].”
`
`47 U.S.C. § 230(c)(2)(A), (B).
`
`

`

`9a
`held liable for any offensive content it carried from
`third parties. See id.
`
`The corollary of this rule, as later articulated by a
`New York state trial court, was that once a service
`provider undertook to filter offensive content from its
`network, it assumed responsibility for any offensive
`content it failed to filter, even if it lacked knowledge
`of the content. See Stratton Oakmont, Inc. v. Prodigy
`Services Co., 1995 WL 323710, *5 (N.Y. Sup. Ct. May
`24, 1995) (“Prodigy’s conscious choice, to gain the
`benefits of editorial control, has opened it up to a
`greater
`liability
`than CompuServe and other
`computer networks that make no such choice.”),
`superseded by statute, Communications Decency Act,
`Pub. L. No. 104-104, 110 Stat. 137, as recognized in
`Shiamili v. Real Estate Group of N.Y., Inc., 952
`N.E.2d 1011
`(2011). Representative Chris Cox
`warned during debates on proposed legislation aimed
`at overruling Stratton Oakmont, that premising
`liability on providers’ efforts to filter out offensive
`material was deterring software companies from
`providing the filtering software and tools that could
`help parents block pornography and other offensive
`material from their home computers. See 141 Cong.
`Rec. 22,045 (1995) (statement of Rep. Cox).
`
`The Stratton Oakmont decision, along with the
`increasing public concern about pornography on the
`internet, served as catalysts for
`legislators to
`consider greater
`internet regulation. Congress
`considered, in early 1995, two different amendments
`to the Telecommunications Act. The first, called the
`Exon-Coats amendment, targeted pornography at
`the source by prohibiting its dissemination. See id. at
`16,068. Proponents of this bill argued that parents
`
`

`

`10a
`lacked the technological sophistication needed to
`implement online-filtration tools and that the
`government therefore needed to step in. Id. at
`16,099. The second proposal, entitled the Online
`Family Empowerment Act
`(“OFEA”),
`targeted
`internet pornography at the receiving end by
`encouraging further development of filtration tools.
`Id. at 22,044. Proponents of this bill pointed out that
`prohibiting pornography at
`the source raised
`constitutional issues involving prior restraint, and
`argued that parents, not government bureaucrats,
`were better positioned to protect their children from
`offensive online material. Id. at 16,013.
`
`On February 1, 1996, Congress enacted both
`approaches as part of the CDA. The Exon-Coats
`amendment was codified at 47 U.S.C. § 223, but was
`later invalidated by Reno v. ACLU, 521 U.S. 844,
`877–79 (1997). Before us is OFEA’s approach,
`enacted as § 230(c)(2) of the CDA. See Pub L. No.
`104-104, § 509, 110 Stat. 56, 137–39. By immunizing
`internet-service providers from liability for any
`action taken to block, or help users block offensive
`and objectionable online content, Congress overruled
`Stratton Oakmont and thereby encouraged the
`development of more sophisticated methods of online
`filtration. See H.R. Conf. Rep. No. 104879, at 194
`(1996).
`
`The history of § 230(c)(2) shows that access to
`pornography was Congress’s motivating concern, but
`the language used in § 230 included much more,
`covering any online material considered to be
`“excessively
`violent, harassing,
`or
`otherwise
`objectionable.” See 47 U.S.C. § 230(c)(2)(A)–(B).
`Perhaps to guide the interpretation of this broad
`
`

`

`11a
`language, Congress took the rather unusual step of
`setting
`forth policy goals
`in the
`immediately
`preceding paragraph of the statute. See id. § 230(b).
`Of the five goals, three are particularly relevant
`here. These goals were
`“to encourage
`the
`development of technologies which maximize user
`control”; “to empower parents to restrict their
`children’s access to objectionable or inappropriate
`online content”; and “to preserve the vibrant and
`competitive free market that presently exists for the
`Internet and other interactive computer services.”
`See id. § 230(b)(2)–(4).
`
`This court has decided one prior case where we
`considered the scope of § 230, but were principally
`concerned with which
`types of online-service
`providers Congress
`intended to
`immunize. See
`Zango, 568 F.3d at 1175. We acknowledged that
`providers of computer security software can benefit
`from § 230 immunity, and that such providers have
`discretion to
`identify what online content
`is
`considered “objectionable,” id., but we had no reason
`to discuss the scope of that discretion. The separate
`concurrence in Zango focused on the future need for
`considering appropriate
`limitations on provider
`control. See id. at 1178–80 (Fisher, J. concurring).
`District courts have differed in their interpretations
`of Zango and the discretion granted to providers.
`What is clear to us from the statutory language,
`history, and case law is that providers do not have
`unfettered discretion to declare online content
`“objectionable” and blocking and filtering decisions
`that are driven by anticompetitive animus are not
`entitled to immunity under section 230(c)(2).
`
`

`

`12a
`FACTUAL BACKGROUND
`
`Plaintiff-appellant Enigma Software Group USA,
`LLC, is a Florida company that sells computer
`security software nationwide. Malwarebytes Inc., a
`Delaware corporation headquartered in California,
`also sells computer security software nationwide.
`Malwarebytes and Enigma are therefore direct
`competitors.
`
`Providers of computer security software help users
`identify and block malicious or threatening software,
`termed malware,
`from their computers. Each
`provider generates its own criteria to determine
`what software might threaten users. Defendant
`Malwarebytes programs its software to search for
`what
`it calls Potentially Unwanted Programs
`(“PUPs”). PUPs
`include,
`for example, what
`Malwarebytes describes as software that contains
`“obtrusive, misleading, or deceptive advertisements,
`branding or search practices.” Once Malwarebytes’s
`security software is purchased and installed on a
`user’s computer, it scans for PUPs, and according to
`Enigma’s complaint, if the user tries to download a
`program that Malwarebytes has determined to be a
`PUP, a pop-up alert warns the user of a security risk
`and advises the user to stop the download and block
`the potentially threatening content.
`
`Malwarebytes and Enigma have been direct
`competitors since 2008, the year of Malwarebytes’s
`inception. In their first eight years as competitors,
`neither Enigma nor Malwarebytes
`flagged the
`other’s software as threatening or unwanted. In late
`2016, however, Malwarebytes revised
`its PUP-
`detection criteria to include any program that,
`
`

`

`13a
`according to Malwarebytes, users did not seem to
`like.
`
`software
`revision, Malwarebytes’s
`the
`After
`immediately began flagging Enigma’s most popular
`programs — RegHunter and SpyHunter — as PUPs.
`Thereafter, anytime a user with Malwarebytes’s
`software tried to download those Enigma programs,
`the user was alerted of a security risk and, according
`to Enigma’s complaint, the download was prohibited,
`i.e. Malwarebytes “quarantined” the programs.
`Enigma alleges that Malwarebytes’s new definition
`of a PUP
`includes
`subjective
`criteria
`that
`Malwarebytes has “implemented at its own malicious
`whim” in order to identify Enigma’s programs as
`threats. Enigma characterizes the revision as a
`“guise” for anticompetitive conduct, and alleges that
`its programs are “legitimate”, “highly regarded”, and
`“pose no
`security
`threat.” As a
`result of
`Malwarebytes’s actions, Enigma claims that it has
`lost customers and revenue and experienced harm to
`its reputation.
`
`Enigma brought this action against Malwarebytes
`in early 2017, in the Southern District of New York.
`Enigma claimed that Malwarebytes has used its
`PUP-modification process to advance a “bad faith
`campaign of unfair competition” aimed at “deceiving
`consumers and interfering with [Enigma’s] customer
`relationships.”
`
`Enigma’s complaint alleged four claims, three
`under New York state law and one under federal
`law. The first state-law claim accused Malwarebytes
`of using deceptive business practices in violation of
`New York General Business Law § 349. Enigma’s
`
`

`

`14a
`second and third state-law claims alleged tortious
`interference with business and contractual relations
`in violation of New York state common law. The
`federal claim accused Malwarebytes of making false
`and misleading statements to deceive consumers into
`choosing Malwarebytes’s security software over
`Enigma’s, in violation of the Lanham Act, 15 U.S.C.
`§ 1125(a)(1)(B).
`
`Malwarebytes sought a change of venue. Although
`Enigma maintained that venue was proper in New
`York because Malwarebytes’s conduct affected users
`and computers within that state, the conduct at issue
`had national reach. The district court therefore
`granted Malwarebytes’s motion to transfer the case
`to the Northern District of California, where
`Malwarebytes is headquartered.
`
`Malwarebytes then moved to dismiss for failure to
`state a claim, arguing that it was immune from
`liability under § 230(c)(2) of the CDA. The district
`court granted the motion, finding that under the
`reasoning of our decision in Zango, Malwarebytes
`was immune under § 230 on all of Enigma’s claims.
`The district court interpreted Zango to mean that
`anti-malware software providers are free to block
`users from accessing any material that those
`providers,
`in
`their discretion, deem
`to be
`objectionable. Given Malwarebytes’s status as a
`provider of filtering software, and its assertion that
`Enigma’s programs are potentially unwanted, the
`district court held that Malwarebytes could not be
`liable under state law for blocking users’ access to
`Enigma’s programs.
`
`

`

`15a
`With respect to the federal claim, the district court
`had to consider the intellectual property exception to
`the CDA’s immunity provision set forth in 47 U.S.C.
`§ 230(e)(2). The somewhat opaque exception states
`that § 230 immunity “shall not be construed to limit
`or expand any
`law pertaining to
`intellectual
`property.” Id. Enigma’s federal claim alleged false
`advertising under the Lanham Act, and Enigma
`contended that immunity did not apply because that
`statute deals with
`intellectual property,
`i.e.
`trademarks. The district court reasoned, however,
`that although the Lanham Act itself deals with
`intellectual property, Enigma’s false advertising
`claim did not relate to any type of intellectual
`property and therefore § 230 immunity encompassed
`that
`claim as well. Having
`concluded
`that
`Malwarebytes was immune on all four claims, the
`district court dismissed the complaint and granted
`judgment for Malwarebytes.
`
`On appeal, Enigma primarily contends that the
`district court erred in interpreting our Zango opinion
`to give online service providers unlimited discretion
`to block online content, and that the Good Samaritan
`blocking provision does not provide such sweeping
`immunity
`that
`it encompasses anticompetitive
`conduct.
`
`DISCUSSION
`
`I. Scope of § 230(c)(2) Immunity as Applied to
`State-Law Claims
`
`The district court held that our opinion in Zango
`controlled, and interpreted Zango to mean that an
`online-service provider cannot be liable for blocking
`internet users from accessing online content that the
`
`

`

`16a
`provider considers objectionable, regardless of the
`provider’s motivations or the harmful effects of the
`blocking. The scope of the statutory catchall phrase,
`“otherwise objectionable,” was not at issue in Zango,
`however. The central issue in Zango was whether §
`230 immunity applies to filtering software providers
`like the defendant Kaspersky in that case, and both
`parties in this case. See 568 F.3d at 1173, 1176. We
`held such providers had immunity. Id. at 1177–78.
`At the end of our majority opinion, we emphasized
`the relevant statutory language in stating that § 230
`permits providers to block material “that either the
`provider or the user considers . . . objectionable.” See
`id. at 1177 (original emphasis). The district court
`focused on
`that sentence and reasoned
`that
`Malwarebytes had unfettered discretion to select
`what criteria makes a program “objectionable” under
`§ 230, and further, that the court was not to analyze
`Malwarebytes’s reasons for doing so.
`
`The majority in Zango did not, however, address
`whether there were limitations on a provider’s
`discretion to declare online content “objectionable.”
`No such issue was raised in the appeal. We noted
`that Zango “waived” the argument that its software
`was not “objectionable.” See id. at 1176–77. We
`therefore held that § 230
`immunity covered
`Kaspersky’s decision to block users from accessing
`the type of content at issue in that case and
`concluded that § 230 permits providers to block
`material
`that
`“the provider considers
`.
`.
`.
`objectionable.” Id. at 1177.
`
`It was Judge Fisher’s concurring opinion in Zango
`that framed the issue for future litigation as to
`whether the term “objectionable” might be construed
`
`

`

`17a
`in a way that would immunize providers even if they
`blocked online content for improper reasons. See id.
`at 1178–80 (Fisher, J. concurring). Judge Fisher
`warned that extending immunity beyond the facts of
`that case could “pose serious problems,” particularly
`where a provider is charged with using § 230
`immunity to advance an anticompetitive agenda. See
`id. at 1178. He said that an “unbounded” reading of
`the phrase “otherwise objectionable” would allow a
`content provider to “block content for anticompetitive
`purposes or merely at its malicious whim.” Id.
`
`District courts nationwide have grappled with the
`issues discussed in Zango’s majority and concurring
`opinions, and have reached differing results. Like the
`district court in this case, at least two other federal
`district courts have relied on Zango to dismiss
`software-provider lawsuits against Malwarebytes
`where the plaintiff claimed that Malwarebytes
`improperly characterized the plaintiff’s software as a
`PUP. See PC Drivers Headquarters, LP v.
`Malwarebytes Inc., 371 F. Supp. 3d 652 (N.D. Cal.
`2019); PC Drivers Headquarters, LP v. Malwarebytes,
`Inc., No. 1:18-CV-234-RP, 2018 WL 2996897, at *1
`(W.D. Tex. Apr. 23, 2018).
`
`Other district courts have viewed our holding in
`Zango to be less expansive. See Song fi Inc. v. Google,
`Inc., 108 F. Supp. 3d 876, 884 (N.D. Cal. 2015)
`(noting that just because “the statute requires the
`user or service provider to subjectively believe the
`blocked or screened material is objectionable does
`not mean anything or everything YouTube finds
`subjectively objectionable is within the scope of
`Section 230(c),” and concluding that, “[o]n the
`contrary such an ‘unbounded’ reading . . . would
`
`

`

`18a
`for
`‘block content
`enable content providers to
`anticompetitive reasons[.]’”) (quoting Judge Fisher’s
`concurrence in Zango); Sherman v. Yahoo! Inc., 997
`F. Supp. 2d 1129, 1138 (S.D. Cal. 2014) (same); see
`also Holomaxx Techs. v. Microsoft Corp., 783 F.
`Supp. 2d 1097, 1104 (N.D. Cal. Mar. 11, 2011)
`(acknowledging
`that
`a
`provider’s
`subjective
`determination of what constitutes objectionable
`material under § 230(c)(2) is not limitless, but
`finding that the harassing emails in that case were
`reasonably objectionable).
`
`We find these decisions recognizing limitations in
`the scope of immunity to be persuasive. The courts
`interpreting Zango as providing unlimited immunity
`seem to us to have stretched our opinion in Zango too
`far. This is because the focus of that appeal was
`neither what type of material may be blocked, nor
`why it may be blocked, but rather who benefits from
`§ 230 immunity. The issue was whether § 230
`immunity applies to filtering-software providers. See
`Zango, 568 F.3d at 1173. We answered that question
`in the affirmative, explaining that Kaspersky was
`the type of “interactive computer service” to which §
`230(c)(2) expressly referred, and that Kaspersky was
`engaged in the type of conduct to which § 230(c)(2)
`generally applies. Id. at 1175–76.
`
`As relevant here, the majority opinion in Zango
`establishes only that Malwarebytes, as a filtering-
`software provider,
`is an entity to which the
`immunity afforded by § 230 would apply. The
`majority opinion does not require us to hold that we
`lack the authority to question Malwarebytes’s
`determinations of what content to block. We must
`therefore in this case analyze § 230 to decide what
`
`

`

`19a
`limitations, if any, there are on the ability of a
`filtering software provider to block users from
`receiving online programming.
`
`The legal question before us is whether § 230(c)(2)
`immunizes blocking and filtering decisions that are
`driven by anticompetitive animus. The majority in
`Zango had no occasion to address the issue, and the
`parties in that case were not competitors. See 568 F.
`3d at 1170 (explaining Kaspersky is a security
`software provider; Zango provides an online service
`for users to stream movies, video games, and music).
`This is the first § 230 case we are aware of that
`involves direct competitors.
`
`In this appeal, Enigma alleges that Malwarebytes
`blocked Enigma’s programs
`for anticompetitive
`reasons, not because the programs’ content was
`objectionable within the meaning of § 230, and that
`§ 230 does not provide immunity for anticompetitive
`conduct. Malwarebytes’s position is that, given the
`catchall, Malwarebytes has immunity regardless of
`any anticompetitive motives.
`
`We cannot accept Malwarebytes’s position, as it
`appears contrary to CDA’s history and purpose.
`Congress expressly provided that the CDA aims “to
`preserve the vibrant and competitive free market
`that presently exists for the Internet and other
`interactive computer services” and to “remove
`disincentives for the development and utilization of
`blocking and filtering technologies.” § 230(b)(2)–(3).
`Congress said it gave providers discretion to identify
`objectionable content
`in
`large part to protect
`competition, not suppress it. Id. In other words,
`Congress wanted to encourage the development of
`
`

`

`20a
`filtration technologies, not to enable software
`developers to drive each other out of business.
`
`In the infancy of the internet, the unwillingness of
`Congress to spell out the meaning of “otherwise
`objectionable” was understandable. The broad grant
`of protective control over online content may have
`been more readily acceptable in an era before the
`potential magnitude of internet communication was
`fully comprehended. Indeed, the fears of harmful
`content at the time led Congress to enact, in the
`same statute, an outright ban on the dissemination
`of online pornography, a ban which the Supreme
`Court swiftly rejected as unconstitutional a year
`later. See Reno v. ACLU, 521 U.S. at 877–79
`(striking down 47 U.S.C. § 223).
`
`We must today recognize that interpreting the
`statute to give providers unbridled discretion to
`block online content would, as Judge Fisher warned,
`enable and potentially motivate internet-service
`providers to act for their own, and not the public,
`benefit. See 568 F.3d at 1178 (Fisher, J., concurring).
`Immunity
`for
`filtering practices
`aimed
`at
`suppressing competition, rather than protecting
`internet users, would lessen user control over what
`information they receive, contrary to Congress’s
`stated policy. See § 230(b)(3) (to maximize user
`control over what content they view). Indeed, users
`selecting a security software provider must trust
`that the provider will block material consistent with
`that user’s desires. Users would not reasonably
`anticipate providers blocking valuable online content
`in
`order
`to
`stifle
`competition.
`Immunizing
`anticompetitive blocking would,
`therefore, be
`contrary to another of the statute’s express policies:
`
`

`

`21a
`“removing disincentives for the utilization of blocking
`and filtering technologies.” Id. § 230(b)(4).
`
`We therefore reject Malwarebytes’s position that
`§ 230 immunity applies regardless of anticompetitive
`purpose. But we cannot, as Enigma asks us to do,
`ignore the breadth of the term “objectionable” by
`construing it to cover only material that is sexual or
`violent in nature. Enigma would have us read the
`general, catchall phrase “otherwise objectionable” as
`limited to the categories of online material described
`in the seven specific categories that precede it. See 47
`U.S.C. § 230(c)(2) (describing material that is
`“obscene, lewd, lascivious, filthy, excessively violent,
`harassing or otherwise objectionable.”). Enigma
`argues that its software has no such content, and
`that Malwarebytes therefore cannot claim immunity
`for blocking it.
`
`Enigma relies on the principle of ejusdem generis,
`which teaches that when a generic term follows
`specific terms, the generic term should be construed
`to reference subjects akin to those with the specific
`enumeration. See, e.g., Norfolk & W. Ry. Co. v. Am.
`Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991).
`But the specific categories listed in § 230(c)(2) vary
`greatly: Material that is lewd or lascivious is not
`necessarily similar to material that is violent, or
`material that is harassing. If the enumerated
`categories are not similar, they provide little or no
`assistance in interpreting the more general category.
`We have previously recognized this concept. See
`Sacramento Reg’l Cty. Sanitation Dist. v. Reilly, 905
`F.2d 1262, 1270 (9th Cir. 1990) (“Where the list of
`objects that precedes the
`‘or other

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