Zango v. Kaspersky Lab

Citation: Zango v. Kaspersky Lab, Inc., 2009 WL 1796746 (9th Cir. June 25, 2009).

Factual Background
Kaspersky Lab, Inc. distributes software that blocks potentially malicious software. Some of the software designated as “malware” by Kaspersky includes programs developed by Zango, Inc. Zango distributes a series of programs that allow users access to a catalog of free online videos, games, music, tools, and utilities in exchange for the installation of software that displays advertisements while browsing the internet. According to Zango the Kaspersky software wrongfully blocked access to portions of its programs installed with the consent of its users.

Trial Court Proceedings
Zango brought this action against Kaspersky seeking injunctive relief for tortious interference with contractual rights, violation of the Washington Consumer Protection Act, trade libel and unjust enrichment, Kaspersky invoked the protection of §230(c)(2)(B) of the Communications Decency Act (outlining “good samaritan” blocking and screening of offensive material).

After the case was removed to federal court, the district court granted summary judgment in favor of Kaspersky on the ground that it was entitled to immunity under the Communications Decency Act (“CDA”).

Appellate Court Proceedings
Zango’s appeal was based on the argument that CDA Section 230 was only meant to apply to content providers and not to companies that provide filtering tools. In interpreting the statute the Ninth Circuit held that immunity extended to providers of filtering software under the “good samaritan” blocking provision.

Section 230(c)(2)(B) of the CDA provides protection for “good samaritan” blocking and screening of offensive material and states that


 * [n]o provider or user of an interactive computer service shall be held liable on account of . . . any action taken to enable or make available to 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].

An interactive computer service is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” An access software providers is defined in part as a “provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze or digest content.”

Kaspersky qualifies as an access software provider under the statute and is therefore entitled to immunity under the CDA. The Ninth Circuit rejected Zango’s argument that immunity should not apply because Kaspersky, rather than the customer, determined that Zango’s programs should be classified as malware. The Court found that the plain language of the statute states that immunity is granted to providers who “enable or make available” the means to restrict access, which Kaspersky has done. Even if Kaspersky’s determination of Zango’s programs as malware is inaccurate it cannot be argued that the means to restrict access was provided.

The court further stated that because the user chose whether or not to install and use Kaspersky’s software, the ultimate choice to block the Zango programs was in the hands of the user.