Malwarebytes Conclusion Shows Section 230's Best Feature: Killing Dumb Cases Before They Waste Everyone's Time And Money

from the 230's-procedural-benefits dept

A few years ago, Professor Eric Goldman wrote an important paper, explaining how Section 230 is better than the 1st Amendment. The key part of the argument is that if you treat Section 230 as a rule of civil procedure that kicks out frivolous and wasteful cases quickly, you realize how important it is.

Last month, a federal district court in California dismissed Enigma Software's high profile lawsuit against Malwarebytes. You may have heard about this case. We've been covering it for years, and it even got some (dubious) attention at the Supreme Court, regarding Section 230. Enigma didn't like that Malwarebytes (and others) found Enigma's "SpyHunter" software to be sketchy itself and started suing. Malwarebytes initially won on Section 230 grounds, pointing out that its opinions on what is and what is not spyware is a moderation choice -- in this case protected by Section 230's rarely used (c)(2)'s immunity for content that the provider deems "otherwise objectionable."

Unfortunately, the 9th Circuit reversed that ruling with a very weird opinion that seemed to contradict its own previous precedent. In that ruling, the 9th Circuit carved a new hole in (c)(2) arguing that you could lose 230 protections if there was an argument that the decision to block content (or call something spyware) was done "for anticompetitive reasons." From the ruling:

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

This ruling was appealed to the Supreme Court who declined to hear the case, though allowing Justice Clarence Thomas to spew some unfettered unbriefed nonsense about Section 230.

Either way, that sent the case all the way back to the district court... where it was dismissed anyway because calling something spyware is protected opinion.

Like in Asurvio LP, Enigma has not pleaded that Malwarebytes’ alleged labels are verifiably false rather than just subjective opinions. Enigma’s allegations that users view statements categorizing Enigma’s programs and domains as “malicious,” “threats,” and PUPs as statements of fact rather than subjective opinions are not supported by the facts presented. The allegations ignore that users of Malwarebytes are aware of why it opines that a given software program may be a PUP based on Malwarebytes’ disclosed criteria and can choose to quarantine or un-quarantine the detected program.

In other words, after all this nonsense and back and forth over Section 230, years later, Malwarebytes still wins the case because the 1st Amendment protects its opinions.

This is similar to another famous 9th Circuit ruling on 230 from a while back: the Roommates.com case. In that case, the court ruled that Section 230 did not protect Roommates.com for content it places in a pulldown menu (that users used to select roommate preferences), but in the end (many years later) Roommates.com still won the case because the 1st Amendment protected it.

Both of these cases demonstrate two very important things: first, most of what people complain about regarding Section 230 is actually protected by the 1st Amendment, so even if we got rid of Section 230, the 1st Amendment would still enable websites to moderate how they see fit. But, much more importantly, both of those cases demonstrate the procedural benefits of Section 230, in that they enable these kinds of cases to be dismissed quickly and relatively inexpensively, rather than having to go through a years long process. In short, Section 230's civil procedure benefits are that they get frivolous cases tossed out of court much more quickly, and at less expense. And that's important, since so many of these cases are, in some form or another, SLAPP suits, designed to pressure companies not to moderate certain content.

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Filed Under: 1st amendment, content moderation, free speech, malware, moderation, opinion, section 230, spam
Companies: enigma software, malwarebytes


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  1. icon
    That One Guy (profile), 13 Sep 2021 @ 9:43am

    A right you can't afford may as well not exist

    230 may 'just' be based upon first amendment rights but where it differs is that it allows people to be able to afford those rights by shortcutting lawsuits attempting to punish people/platforms for making use of them.

    The ability to moderate your own property as a right doesn't mean much if you can be sued into the ground should you exercise it and someone else not like that, so even if ultimately the first amendment covers such activity and lawsuits would be tossed on those grounds 230 is still vital to have in place in such a lawsuit-happy system.

    reply to this | link to this | view in thread ]

  2. icon
    Toom1275 (profile), 13 Sep 2021 @ 11:51am

    Re: A right you can't afford may as well not exist

    Couldn't find the source last time I checked (thought it was Goldman's paper, but didn't find it in there), but wasn't there somewhere that found the difference in cost for defending against censorious sham lawsuits is somewhere around 5 figures with 230, vs high 6-7 figures without it?

    reply to this | link to this | view in thread ]

  3. icon
    Mike Masnick (profile), 13 Sep 2021 @ 12:02pm

    Re: Re: A right you can't afford may as well not exist

    Engine Advocacy did a paper on this exact point: https://www.engine.is/news/primer/section230costs

    reply to this | link to this | view in thread ]

  4. icon
    Toom1275 (profile), 13 Sep 2021 @ 12:30pm

    Re: Re: Re: A right you can't afford may as well not exist

    Yeah, that looks like what I was remembering, thanks. Now it should be easier to find as a bookmark.

    reply to this | link to this | view in thread ]

  5. icon
    Ninja (profile), 13 Sep 2021 @ 1:21pm

    Re: A right you can't afford may as well not exist

    Justice is inaccessible for most people if you think about it. If you are on the receiving end of a lawsuit then you are generally screwed. Even when there are public defenders (whatever you call there, it's lawyers for free for lower income) they are generally overwhelmed with work and the system is generally against you (ie: you are guilty upon accusation) and the prosecution will pile up enough charges that most will plead guilty in to get away with as little damage as they can.

    There must be some country somewhere justice is actually affordable and just. These countries do not include mine or the US.

    reply to this | link to this | view in thread ]

  6. icon
    Upstream (profile), 13 Sep 2021 @ 2:00pm

    The whole point

    Section 230's Best Feature: Killing Dumb Cases Before They Waste Everyone's Time And Money

    The title says it all. As noted, Section 230 was nothing new, in terms of rights or responsibilities. It did make it much cheaper / easier to defend meritless attacks on those existing rights.

    We need more of the same in other areas.

    reply to this | link to this | view in thread ]

  7. icon
    That Anonymous Coward (profile), 13 Sep 2021 @ 3:29pm

    But if we killed the dumb cases, Judges might start making these insane rulings on real cases...

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 13 Sep 2021 @ 8:45pm

    John Smith stamping his mailing list feet in 3, 2, 1...

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 15 Sep 2021 @ 4:31am

    Neither of those cases are "dumb" or baseless, especially when you consider that part of the justification for the policy choices in 230 is that it extends the rules from analogous situation in meatspace.

    In the Roommates case, would a letting agency IRL be breaking the law by asking customers if they want to add those requirements, and then including them in the listing? If it was company policy would the company be liable and not some glorified receptionist that passed customers the forms? I'd assume the answers would be yes to both, in which case it is reasonable to say that they didn't think congress meant to exempt agencies violating the Civil Rights Act using a computer, especially since the scope of the exception for content they specifically solicit hadn't then been narrowed as much as it was by the case.

    In the Malwarebytes case, Enigma had the fairly reasonable argument that Malwarebytes couldn't use their dominant market position in providing information about malware to gain an unfair advantage in the market for analysis tools, and that "otherwise objectionable" shouldn't be read as including content that would otherwise be illegal to remove.

    reply to this | link to this | view in thread ]

  10. icon
    Lostinlodos (profile), 15 Sep 2021 @ 4:46pm

    And the problem was?

    Can anyone link to what the initial concern about spy hunter was?

    reply to this | link to this | view in thread ]


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