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A distributor of Internet security software is entitled to immunity under the safe harbor provision of Communications Decency Act section 230(c), from a suit claiming that its filtering and blocking software prevented customers of an online media company from receiving or using its downloadable programs.  The Ninth Circuit affirmed summary judgment in favor of malware blocker Kaspersky Lab, Inc., finding it is a provider of an “interactive computer service” which is “entitled to immunity for actions taken to make available to others the technical means to restrict access to objectionable material”.  In part the dispute arose because plaintiff Zango claimed that its downloadable programs (Zango, Seekmo, Hotbar, and Spam Blocker Utility) are valuable products which are available free to consumers in exchange for their receiving associated Internet ads; while defendant Kaspersky claims that Zango’s products are potentially malicious adware which introduce unwanted pop-up ads and expose users’ computers to further infection. 
 
An interesting part of the decision is the Ninth Circuit’s interpretation of CDA section 230(c) immunity for actions to enable information content providers or others the technical means to restrict access to “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” (CDA section 230(c)(2)(A)).  This provides immunity to either a “provider or user”, making available to “information content providers or others”, the means to block access for material which is “otherwise objectionable”.  Such CDA immunity could perhaps be interpreted to enable active, affirmative software programs to reside on home pages, or roam the Internet as independent agents or bots not only collecting user information, but blocking third-party user access to “objectionable” material, including for example, constitutionally protected materials such as political speech, or mainstream online commercial software or products.  The interaction of this immunity with antitrust law is yet to be fully explored.  Zango, Inc. v. Kaspersky Lab, Inc., Ninth Circuit No. 07-35800, June 25, 2009.

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