Zango Inc v. Kaspersky Lab Inc ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZANGO, INC.,  No. 07-35800
Plaintiff-Appellant,
v.  D.C. No.
CV-07-00807-JCC
KASPERSKY LAB, INC.,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
February 2, 2009—Seattle, Washington
Filed June 25, 2009
Before: Betty B. Fletcher, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Rymer;
Concurrence by Judge Fisher
7973
7976 ZANGO, INC v. KASPERSKY LAB, INC.
COUNSEL
Michael Rosenberger, Gordon Tilden Thomas & Cordell
LLP, Seattle, Washington, for the plaintiff-appellant.
Erik Paul Belt, Bromberg & Sunstein LLP, Boston, Massa-
chusetts, for the defendant-appellee.
OPINION
RYMER, Circuit Judge:
We must decide whether a distributor of Internet security
software is entitled to immunity under the safe harbor provi-
sion of the Communications Decency Act of 1996, 47 U.S.C.
§ 230, from a suit claiming that its software interfered with
the use of downloadable programs by customers of an online
media company.
Zango, Inc. (Zango) is an Internet company that provides
access to a catalog of online videos, games, music, tools, and
utilities to consumers who agree to view advertisements while
they browse the Internet. It brought this action against
Kaspersky Lab, Inc., (Kaspersky) which distributes software
that helps filter and block potentially malicious software, for
improperly blocking Zango’s software. Kaspersky invoked
the protection of § 230(c)(2)(B)1 for “good samaritan” block-
ing and screening of offensive material. The district court
granted summary judgment in Kaspersky’s favor, holding that
it is a provider of an “interactive computer service” entitled
to immunity for actions taken to make available to others the
technical means to restrict access to objectionable material.
We agree, and affirm.
1
All further references are to 47 U.S.C. unless otherwise noted.
ZANGO, INC v. KASPERSKY LAB, INC. 7977
I
Zango has four downloadable software programs —
“Zango,” “Seekmo,” “Hotbar,” and “Spam Blocker Utility.”
Zango provides free access to its catalog if customers agree
to download and install one of these programs, and to receive
online ads that are displayed as they browse the Internet. It
also offers a premium version of “Hotbar” and “Spam
Blocker Utility” for which customers may pay if they wish to
access Zango’s catalog without having to view advertise-
ments.
Kaspersky is the U.S. distributor of Internet security soft-
ware developed by Kaspersky Lab ZAO, which is based in
Russia. Among Kaspersky’s products are “Kaspersky Internet
Security” (KIS) and “Kaspersky Anti-Virus” (KAV). Its soft-
ware helps filter and block unwanted malicious software,
known as “malware,” that can compromise the security and
functionality of a computer. Malware works by, for example,
compromising a user’s privacy, damaging computer files,
stealing identities, or spontaneously opening Internet links to
unwanted websites, including pornography sites.
The Kaspersky software classifies Zango’s programs as
adware, a type of malware. Once installed on a user’s com-
puter, adware monitors a user’s Internet browsing habits and
causes “pop-up ads” to appear on a computer screen while the
user browses the Internet. Adware can also open links to web-
sites and computer servers that host malware and expose
users’ computers to infection, and can swamp a computer’s
memory and slow down computer speed and performance.
For these reasons, pop-up ads and adware are unpopular
among computer users, and consumers often install security
software specifically to block adware.
The Kaspersky software detects malware that may be pres-
ent in an e-mail, web page, or software program that a com-
puter user is about to download. If the Kaspersky software
7978 ZANGO, INC v. KASPERSKY LAB, INC.
determines that the download has characteristics that are con-
sistent with malware, the software warns the user that the
download contains possible malware. Theoretically (though
this is contested), the user of the Kaspersky software then has
the option whether to allow or reject the download of the
potential malware-carrying program.
The Kaspersky software is designed to communicate via
the Internet with online databases and update services that
Kaspersky’s Russian affiliate operates in Moscow. The secur-
ity software is designed to be updated regularly in order to
keep malware definitions current, because new forms of mal-
ware are constantly being developed. A Kaspersky customer
may configure the software to communicate automatically
with these online update servers. Customers may also manu-
ally instruct their Kaspersky software to communicate with
the online update server.
Zango alleges that KIS interferes with Zango customers’
concurrent use of the Zango software in two ways. First, KIS
disables the “toolbar” feature of Zango’s software, which pro-
vides a bar positioned at the top of the user’s Internet browser
page that displays links to relevant advertisers’ websites to
users searching for data on a specific subject. Furthermore,
Zango asserts, KIS does not actually permit Zango customers
to consent to a Zango program’s ongoing operation. Zango
avers that each time the Zango program attempts to access the
Internet, KIS displays a warning that gives the computer user
the option either to block the Zango program or “skip” the
warning. However, while KIS’s warning includes an “apply
to all” checkbox that presumably is meant to stop the repeated
warnings if the user opts to “skip” and selects “apply to all,”
Zango claims that the checkbox does not work. Consequently,
a Zango user running KIS is forced to deal with constant
warnings. According to Zango, the inevitable result is that a
person using Zango and KIS concurrently gives up, thus per-
mitting the Kaspersky software to block the Zango software.
ZANGO, INC v. KASPERSKY LAB, INC. 7979
Zango adds that individuals who were already running KIS
and who sought to download Zango software were prevented
from doing so by KIS. When a user attempted to download
Zango software, KIS displayed a “Web Anti-Virus Warning”
that advised the user to block the Zango download. The “Web
Anti-Virus Warning” permitted the user to click “Allow” to
override the warning and download the Zango program; how-
ever, once the user clicked “Allow,” a new “File Anti-Virus
Warning” appeared, stating that the Zango software could not
be disinfected and that “write access is denied.” Zango main-
tains that installation of Zango software was made impossible
as a consequence.
Zango states that it has not experienced similar problems
with market leaders in the anti-spyware industry such as
McAfee, Norton (Symantec), and Webroot. Rather, Zango
contends, these companies advise users of the presence of
Zango’s programs and offer Zango customers the choice to
ignore the advisory. Zango attributes the decline in the num-
ber of its customers between March 2007 and June 2007 to
interference with Zango software by Kaspersky’s software
and by other anti-spyware software that similarly blocks the
operation of Zango programs.2
The degree of threat posed to users by Zango’s software is
in dispute. Kaspersky contends that Zango’s software is
adware, and possibly spyware. Spyware, which is often
installed on a computer without the user’s knowledge or con-
sent, covertly monitors the user’s activities and exposes the
user to the risk that his or her passwords and confidential
information may be stolen. Zango maintains that it installs its
2
Zango also sought a preliminary injunction against PC Tools, another
maker of security software, alleging similar violations of Washington law
to those alleged here. See Zango, Inc. v. PC Tools Pty Ltd., 494 F. Supp.
2d 1189 (W.D. Wash. 2007). The district court denied Zango’s motion for
a preliminary injunction under the standard five-factor test for injunctions
and did not rely on immunity from liability under § 230 of the Communi-
cations Decency Act, as it did here. See id.
7980 ZANGO, INC v. KASPERSKY LAB, INC.
software only upon receiving user consent, and that it pro-
vides easy means of uninstalling Zango software from a
user’s computer. For users of Microsoft’s Windows operating
systems, these include a Zango icon in the system tray in the
bottom right corner of a user’s computer screen, which leads
to a link where users are informed how to uninstall Zango
software, as well as “Uninstall Zango Instructions” available
in the Start/programs menu.3
Zango initially brought this action in Washington state
court, advancing claims for injunctive relief, tortious interfer-
ence with contractual rights, violation of the Washington
Consumer Protection Act, trade libel, and unjust enrichment.
Kaspersky removed the case to federal court. The district
court denied Zango’s request for a temporary restraining
order, and Kaspersky subsequently filed a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), which the parties and the court
treated as a motion summary judgment under Fed. R. Civ. P.
56. Summary judgment was granted on the ground that
Kaspersky is entitled to immunity under § 230(c)(2)(B).
Zango has timely appealed.4
3
Zango entered into a consent decree with the Federal Trade Commis-
sion in November 2006 following an FTC investigation into Zango’s
alleged deceptive practices in violation of 15 U.S.C. §§ 45, 52. Zango did
not admit to wrongful conduct; however, the decree bars Zango from
using any software (except for “Hotbar”) owned or controlled before Janu-
ary 1, 2006 to display advertising or otherwise communicate with a con-
sumer’s computer. The decree also requires Zango to obtain express
consent before installing its programs on consumers’ computers, and to
provide customers with an effective means of uninstalling its programs.
The earliest the consent order could terminate is 2027.
4
The National Business Coalition on E-Commerce and Privacy filed an
amicus curiae brief in support of Zango’s appeal. The Anti-Spyware
Coalition, Business Software Alliance, CAUCE North America, Inc., The
Center for Democracy & Technology, The Electronic Frontier Foundation,
McAfee, Inc., PC Tools Holdings Pty Ltd., and Sunbelt Software, Inc.
filed an amicus brief in support of affirmance.
ZANGO, INC v. KASPERSKY LAB, INC. 7981
II
The heart of Zango’s appeal is that Congress intended stat-
utory immunity under § 230(c) to apply to Internet content
providers, not to companies that provide filtering tools. We
think the statute plainly immunizes from suit a provider of
interactive computer services that makes available software
that filters or screens material that the user or the provider
deems objectionable.
[1] Section 230, which provides protection for private
blocking and screening of offensive material, is part of the
Communications Decency Act of 1996 (CDA), Pub. L. 104-
104. The CDA was enacted “to control the exposure of
minors to indecent material” on the Internet. Batzel v. Smith,
333 F.3d 1018, 1026 (9th Cir. 2003).
Section 230(c)(2)(B) provides:
(c) Protection for “good samaritan” blocking and
screening of offensive material
...
(2) Civil Liability
No provider or user of an interactive com-
puter service shall be held liable on account
of —
...
(B) any action taken to enable or make
available to information content provid-
ers or others the technical means to
restrict access to the material described
in paragraph (1).
7982 ZANGO, INC v. KASPERSKY LAB, INC.
§ 230(c)(2) & (c)(2)(B).
The material that can be blocked under the exemption
includes “material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harass-
ing, or otherwise objectionable, whether or not such material
is constitutionally protected[.]” § 230(c)(2)(A).5
The statute defines “interactive computer service” 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.”
§ 230(f)(2) (emphasis added).
“Access software provider” 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.” § 230(f)(4)(A), (B).
[2] Thus, a provider of software or enabling tools that filter,
screen, allow, or disallow content that the provider or user
considers obscene, lewd, lascivious, filthy, excessively vio-
lent, harassing, or otherwise objectionable may not be held
liable for any action taken to make available the technical
means to restrict access to that material, so long as the pro-
vider enables access by multiple users to a computer server.
5
We take it that the reference to the “material described in paragraph
(1)” is a typographical error, and that instead the reference should be to
paragraph (A), i.e., § 230(c)(2)(A). See 47 U.S.C.A. § 230 n.1 (West sug-
gesting that “paragraph (1)” is scrivener’s error referring to “paragraph
(A)”). Paragraph (1) pertains to the treatment of a publisher or speaker and
has nothing to do with “material,” whereas subparagraph (A) pertains to
and describes material.
ZANGO, INC v. KASPERSKY LAB, INC. 7983
[3] Going beyond the statute’s plain language, Zango relies
on legislative history to show that Congress intended to grant
immunity only to content providers. In particular, Zango
points to the House Conference Report’s statement that “[o]ne
of the specific purposes of [§ 230] is to overrule Stratton-
Oakmont v. Prodigy and any other similar decisions which
have treated [Internet service] providers and users as publish-
ers or speakers of content that is not their own because they
have restricted access to objectionable material.” H.R. Rep.
No. 104-458, at 194 (1996) (Conf. Rep.). Stratton Oakmont
v. Prodigy Services held that Prodigy, an Internet service pro-
vider that provided online bulletin boards, could be held
responsible for libelous statements posted by others. 1995 WL
323710 (N.Y. Sup. Ct. May 24, 1995). From this, Zango
infers that the good samaritan provision was intended only to
protect information providers from liability they might other-
wise have for defamatory or obscene content prepared by oth-
ers. While certainly this was “one of the specific purposes” of
§ 230(c) and one of the protections it extended, the confer-
ence report goes on to make clear that good samaritan protec-
tions apply “to all access software providers, as defined in
section 230(e)(5) [subsequently renumbered as section
230(f)(4)].” H.R. Rep. 104-458, at 194. And the definition of
access software provider includes any “provider of software
. . . or enabling tools that . . . filter, screen, allow, or disallow
content.” Therefore, our reading of the text comports with the
conferees’ expectations.6
[4] According protection to providers of programs that fil-
ter adware and malware is also consistent with the Congres-
sional goals for immunity articulated in § 230 itself. Five
policy objectives are identified. Of these, two read on the
6
We note in this connection that the primary proponents of § 230 in the
House stated that they sought to encourage parents to “get relief now from
the smut on the Internet by . . . purchas[ing] reasonably priced software
that blocks out the pornography on the Internet.” 141 Cong. Rec. H8470
(Aug. 4, 1995) (quoting Representatives Cox and Wyden).
7984 ZANGO, INC v. KASPERSKY LAB, INC.
issues in this case: “to encourage the development of technol-
ogies which maximize user control over what information is
received by individuals, families, and schools who use the
Internet and other interactive computer services;” and “to
remove disincentives for the development and utilization of
blocking and filtering technologies that empower parents to
restrict their children’s access to objectionable or inappropri-
ate online material[.]” § 230(b)(3), (4). As more software is
developed to block malware, users will be able to exercise
more control over the content that is transmitted to their com-
puters. Thus, affording the safe harbor to providers of anti-
malware software aligns with the Congressional policy stated
in § 230(b)(3). Malware may also expose users to objection-
able content, including links to pornographic websites, or to
software that can compromise the user’s privacy, computer
security, or identity. Thus, the policy stated in § 230(b)(4), of
removing disincentives for the development of software that
filters out objectionable or inappropriate material, is served by
a safe harbor for providers of malware-filtering software who
otherwise fall within the terms of the statute.
[5] This is the first time we have considered this particular
application of § 230, although we have previously addressed
immunity under § 230(c)(1).7 See Barnes v. Yahoo!, Inc., 565
F.3d 560, 563-64 (9th Cir. 2009); Fair Housing Council v.
Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)
(en banc); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,
1122 (9th Cir. 2003); Batzel, 333 F.3d at 1030-31. Section
230(c)(1) is directly aimed at the problem created by the
Stratton decision. Section 230(c)(2)(B), on the other hand,
covers actions taken to enable or make available to others the
technical means to restrict access to objectionable material.
As we have discussed, the drafters’ purpose and the plainly
articulated policies of the statute are served by applying
7
Section 230(c)(1) states: “No provider or user of an interactive com-
puter service shall be treated as the publisher or speaker of any informa-
tion provided by another information content provider.”
ZANGO, INC v. KASPERSKY LAB, INC. 7985
§ 230(c)(2)(B) to immunize the providers of blocking soft-
ware. In sum, this case presents a different problem, and a
statutory provision with a different aim, from ones we have
encountered before.
Nevertheless, Zango reads Batzel to imply that the immu-
nity in § 230(c)(2) was intended to reach website operators
and Internet service providers who provide people with access
to content, but not to companies that provide access to tools
or mechanisms for filtering content. For this it relies on our
remark in Batzel that § 230(c)(2) “insulates service providers
from claims premised on the taking down of a customer’s
posting such as breach of contract or unfair business prac-
tices.” 333 F.3d at 1030 n.14. Zango contends that Kaspersky
does not maintain a service on which objectionable material
may appear and so cannot “take down” a customer’s posting
from its service; put differently, as Zango sees it, Kaspersky,
which sells filtering software but does not provide access to
content, was not an intended beneficiary of statutory immu-
nity. We disagree that we meant to imply this in Batzel. As
we recognized, § 230(c)(2) was “not relevant” to Batzel, and
when we described how § 230(c)(2) “further encourages good
samaritans” we obviously had in mind the circumstances at
issue in that case. Id. Batzel involved a website and listserv,
and potential immunity under § 230(c)(1). Id. at 1030-31. In
that context, our comment about “the taking down of a cus-
tomer’s posting” made sense. By contrast, this case involves
providing the technical means for others to restrict access to
material Kaspersky finds objectionable, which is a different
problem with different potential immunity.
III
Kaspersky will receive protection under § 230(c)(2)(B) for
civil liability so long as it is a “provider” or a “user” of “an
interactive computer service.” No one has argued that Kasper-
sky is a “user.” In Zango’s view, Kaspersky is not a provider,
either.
7986 ZANGO, INC v. KASPERSKY LAB, INC.
[6] We agree with the district court that Kaspersky is a
“provider” of an “interactive computer service” under the
plain terms of § 230(c). Kaspersky “provides” an interactive
computer service because it is an “access software provider
that provides or enables computer access by multiple users to
a computer server.” § 230(f)(2). Kaspersky is an “access soft-
ware provider” because, by providing anti-malware software,
it “provide[s] software . . . or enabling tools that . . . filter,
screen, allow, or disallow content.” § 230(f)(4), (f)(4)(A).
And, under the literal provisions of § 230(f)(2), Kaspersky
“provides or enables computer access by multiple users to a
computer server” by providing its customers with online
access to its update servers.
Zango argues that merely providing an online update fea-
ture does not satisfy § 230(f)(2)’s requirement that the inter-
active computer service “provide[ ] or enable[ ] computer
access by multiple users to a computer server” because nearly
every commercial software application has the capacity to be
updated via the Internet. For this reason, it posits, updating
capacity does not signify that the application itself is a service
that enables access by multiple users to a server. Instead,
Zango proposes a gloss on “interactive computer service” that
would construe a computer service as “interactive” only if it
enables people to access the Internet or access content found
on the Internet. We decline to read the statute so narrowly. As
written, § 230 does not limit the definition of “interactive
computer service” to services that provide access to the Inter-
net; rather, its singular requirement is for “access by multiple
users to a computer server.” § 230(f)(2).
Zango further maintains that § 230(f)(2) requires Kasper-
sky to provide users (whom Zango would define as persons
who volitionally seek access) with access to content that
resides on a server. This argument is unavailing, for Kasper-
sky does provide users with access to the new malware defini-
tion content that is available on its servers. Nor does anything
in the statute require users to seek access “volitionally”;
ZANGO, INC v. KASPERSKY LAB, INC. 7987
§ 230(f)(2) merely speaks of providing or enabling computer
access “by multiple users to a computer server.” In any event,
it is undisputed that Kaspersky users can manually, i.e., voli-
tionally, access the Kaspersky servers for new malware defi-
nitions.
In addition, Zango questions whether the method by which
Kaspersky updates itself matters at all, given that users could
possibly be provided with updates by other means that would
not be shielded by § 230(c)(2)(B), for example, by CD. While
true, we do not see how the possibility that a similar service
could be provided by unprotected means indicates that
Kaspersky, which does provide updates that are via the Inter-
net, falls outside the zone of protection.
[7] Neither does clothing Kaspersky with good samaritan
protection open the door to immunity for any and all software
providers that offer online updates, as Zango fears. The sec-
ond requirement of § 230(c) in subparagraph (2)(B) cuts off
that slippery slope. By its terms, to qualify for immunity, the
interactive computer service must provide the technical means
to restrict access to objectionable material. Thus, non-filtering
programs such as word processors or video games would not
be subject to good samaritan immunity. The universe is fur-
ther limited by the definition of “interactive computer ser-
vice,” which includes only “information service[s], system[s],
or access software provider[s].” § 230(f)(2). As we have
explained, the reason Kaspersky falls within the statutory def-
inition of “access software provider” is that it is a provider of
software that permits users to “filter, screen, allow, or disal-
low content.” § 230(f)(4)(A).
IV
Zango argues that § 230(c)(2)(B) cannot apply for the addi-
tional reason that Kaspersky, rather than the customer, deter-
mines that Zango is malware such that it overrides the
customer’s desire to use Zango. In this situation, Zango sub-
7988 ZANGO, INC v. KASPERSKY LAB, INC.
mits, subparagraph (B), which extends immunity to Internet
computer services that provide filtering tools to others, is not
applicable.
To repeat, § 230(c)(2)(B) provides protection for “any
action taken to enable or make available . . . the technical
means to restrict access” to material covered by
§ 230(c)(2)(A). By providing its anti-malware software and
malware definition update services, Kaspersky both enables
and makes available the technical means to restrict access to
malware. Users choose to purchase, install, and utilize the
Kaspersky software. Regardless of whether Zango is correct
in its allegation that Kaspersky does not provide users of
Kaspersky products a choice to override the security software
and download and use Zango, there is no question that
Kaspersky has “made available” for its users the technical
means to restrict access to items that Kaspersky has defined
as malware. Therefore, Kaspersky satisfies the requirements
of subsection (B) so long as the blocked items are objection-
able material under § 230(c)(2)(A). Zango has waived any
argument on appeal that Kaspersky does not consider Zango’s
software to be “otherwise objectionable,” which is one of the
specified statutory categories. See § 230(c)(2)(A), (B).8
Zango also suggests that § 230 was not meant to immunize
business torts of the sort it presses. However, we have inter-
8
Although Amicus National Business Coalition on E-Commerce and
Privacy takes the position that Zango’s software is not objectionable under
§ 230(c)(2)(A), as did Zango in the district court, Zango does not pursue
the issue on appeal except in reply. An amicus curiae generally cannot
raise new arguments on appeal, United States v. Gementera, 379 F.3d 596,
607-08 (9th Cir. 2004), and arguments not raised by a party in an opening
brief are waived. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th
Cir. 1990) (“It is well established in this circuit that ‘[t]he general rule is
that appellants cannot raise a new issue for the first time in their reply
briefs.’ ”). Because Zango has not argued that the statute limits the mate-
rial a provider of an interactive computer service may properly consider
“objectionable,” that question is not before us.
ZANGO, INC v. KASPERSKY LAB, INC. 7989
preted § 230 immunity to cover business torts. See Perfect 10,
Inc. v. CCBill, LLC, 488 F.3d 1102, 1108, 1118-19 (9th Cir.
2007) (holding that CDA § 230 provided immunity from state
unfair competition and false advertising actions). In any
event, what § 230(c)(2)(B) does mean to do is to immunize
any action taken to enable or make available to others the
technical means to restrict access to objectionable material. If
a Kaspersky user (who has bought and installed Kaspersky’s
software to block malware) is unhappy with the Kaspersky
software’s performance, he can uninstall Kaspersky and buy
blocking software from another company that is less restric-
tive or more compatible with the user’s needs. Recourse to
competition is consistent with the statute’s express policy of
relying on the market for the development of interactive com-
puter services. § 230(b)(1), (2).9
V
As Zango notes, the district court based its dismissal exclu-
sively on subparagraph (B). Zango urges us not to affirm on
the alternative basis of subparagraph (A), maintaining that a
triable issue of fact exists as to Kaspersky’s good faith. How-
ever, we have no need to consider subparagraph (A) immunity
because we agree with the district court’s disposition under
subparagraph (B).
To the extent that Zango in reply raises a different issue —
whether subparagraph (B), which has no good faith language,
should be construed implicitly to have a good faith compo-
nent like subparagraph (A) explicitly has — the argument is
waived. See Eberle, 901 F.2d at 818. For present purposes, we
9
These subparagraphs declare it to be the policy of the United States
“(1) to promote the continued development of the Internet and other inter-
active computer services and other interactive media; [and] (2) to preserve
the vibrant and competitive free market that presently exists for the Inter-
net and other interactive computer services, unfettered by Federal or State
regulation.”
7990 ZANGO, INC v. KASPERSKY LAB, INC.
note that subparagraph (B) comes with only one constraint:
the protection afforded extends only to providers who “enable
or make available to . . . others” the technical means to restrict
access to material that either the user or the provider deems
objectionable.10
Conclusion
[8] The district court correctly held that Kaspersky is a pro-
vider of an “interactive computer service” as defined in the
Communications Decency Act of 1996. We conclude that a
provider of access tools that filter, screen, allow, or disallow
content that the provider or user considers obscene, lewd, las-
civious, filthy, excessively violent, harassing, or otherwise
objectionable is protected from liability by 47 U.S.C.
§ 230(c)(2)(B) for any action taken to make available to oth-
ers the technical means to restrict access to that material. As
its software qualifies, Kaspersky is entitled to good samaritan
immunity.
AFFIRMED.
FISHER, J., Circuit Judge, concurring:
I concur with my colleagues that the plain language of the
Communications Decency Act’s “good samaritan” immunity
provision, 47 U.S.C. § 230(c)(2)(B), given the way Zango has
framed its appeal, compels us to affirm the district court’s
judgment that Kaspersky is immune from liability. Nonethe-
less, extending immunity beyond the facts of this case could
pose serious problems if providers of blocking software were
10
Zango’s additional argument in reply that the proposed SPY Act (H.R.
964, 110th Cong. (2007)) supports its position is waived. We do not con-
sider it, or Kaspersky’s alternative argument that Zango fails on the merits
to state a claim under Washington law.
ZANGO, INC v. KASPERSKY LAB, INC. 7991
to be given free license to unilaterally block the dissemination
of material by content providers under the literal terms of
§ 230(c)(2)(A). The risk inheres in the disjunctive language of
the statute — which permits blocking of “material that the
provider or user considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objection-
able, whether or not such material is constitutionally protect-
ed” — and the unbounded catchall phrase,“otherwise
objectionable.” See § 230(c)(2)(A), (B).
Kaspersky is an “access software provider that provides or
enables computer access by multiple users to a computer serv-
er,” § 230(f)(2), and its sale of blocking software is an “action
taken to enable or make available to information content pro-
viders or others the technical means to restrict access” to
Zango, which Kaspersky considers “otherwise objectionable,”
§ 230(c)(2)(A), (B). Arguably, Zango’s software is not “oth-
erwise objectionable” under § 230(c)(2), but Zango waived
that argument here.1 Congress plainly intended to give com-
puter users the tools to filter the Internet’s deluge of material
users would find objectionable, in part by immunizing the
providers of blocking software from liability. See § 230(b)(3).
But under the generous coverage of § 230(c)(2)(B)’s immu-
nity language, a blocking software provider might abuse that
immunity to block content for anticompetitive purposes or
merely at its malicious whim, under the cover of considering
1
Amici for both parties, listed above, Op. at 7980 n.4, argued for some
limitation on Kaspersky’s ability to declare Zango’s product objection-
able. Zango’s amicus argued that the principle of ejusdem generis requires
us to define “otherwise objectionable” by reference to the statute’s other
descriptions of objectionable material. By Zango’s amicus’ reading,
Zango’s software could be “otherwise objectionable” only if it were akin
to “obscene, lewd, lascivious, filthy, excessively violent, [or] harassing”
material. 42 U.S.C. § 230(c)(2)(A). Zango did not adopt this argument.
Kaspersky’s amici argued for an implicit good faith limitation, such that
providers of access software like Kaspersky would be immune for block-
ing material they consider objectionable only when that blocking is in
good faith. Zango made this argument only in reply and thus waived it.
7992 ZANGO, INC v. KASPERSKY LAB, INC.
such material “otherwise objectionable.” Focusing for the
moment on anticompetitive blocking, I am concerned that
blocking software providers who flout users’ choices by
blocking competitors’ content could hide behind
§ 230(c)(2)(B) when the competitor seeks to recover dam-
ages. I doubt Congress intended § 230(c)(2)(B) to be so for-
giving. Cf. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir.
2003) (“Why should a law designed to eliminate ISPs’ liabil-
ity to the creators of offensive material end up defeating
claims by the victims of tortious or criminal conduct?”).
When presented at oral argument with the possibility
§ 230(c)(2)(B) could immunize covert blocking of content the
user would want to access — if the user knew about it —
Kaspersky emphasized that its software, Kaspersky Internet
Security (“KIS”), when properly functioning, warns the user
that KIS is about to block content. A pop-up window appears,
and the user may “allow” the content over KIS’s warning by
clicking the appropriate button. But Kaspersky conceded that
immunity under § 230(c)(2)(B) does not depend on the pres-
ence of such a warning or override option. Other blocking
software might be less accommodating to the user’s prefer-
ences, either not providing an override option or making it
difficult to use. Consider, for example, a web browser config-
ured by its provider to filter third-party search engine results
so they would never yield websites critical of the browser
company or favorable to its competitors. Such covert, anti-
competitive blocking arguably fits into the statutory category
of immune actions — those taken by an access software pro-
vider to provide the technical means to block content the pro-
vider deems objectionable.2 Unless § 230(c)(2)(B) imposes
some good faith limitation on what a blocking software pro-
vider can consider “otherwise objectionable,” or some
2
Not every software provider is an “access software provider” under the
statute, but it seems the provider of a web browser would be; most web
browsers come equipped with a filtering function, i.e., the technical means
to “filter, screen, allow, or disallow content.” § 230(f)(4)(A).
ZANGO, INC v. KASPERSKY LAB, INC. 7993
requirement that blocking be consistent with user choice,
immunity might stretch to cover conduct Congress very likely
did not intend to immunize.3
Computer users are of course always free to replace their
blocking software with software more in line with their pref-
erences, and this market-based solution finds support in the
statute. See § 230(b)(2). But my concern is that blocking soft-
ware providers — providers of web browsers being the most
convenient and familiar example — could employ their soft-
ware to block content for anticompetitive purposes without
the user’s knowledge. If users are unaware of undesired
blocking, they would not know to switch to different software
or even to complain to the blocked provider that they are hav-
ing trouble accessing its material, thereby tipping off the con-
tent provider such as Zango alleges happened here when its
users complained.
3
The parties cite legislative history suggesting that one of § 230’s chief
purposes was to facilitate parents’ and employers’ efforts to control the
influx of online content into the home and workplace by removing legal
barriers to private filtering technologies, especially with respect to a pro-
vider’s status as speaker or publisher under defamation law. See, e.g., 141
Cong. Rec. H8470 (daily ed. Aug. 4, 1995) (statements of Rep. Cox and
Rep. Wyden); see generally Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (unpublished) (finding
PRODIGY liable to plaintiff for libel because PRODIGY exercised edito-
rial control over its online message boards). We recently reaffirmed that
protecting Internet companies from liability arising out of their status as
a speaker or publisher is at the heart of § 230 immunity. See Barnes v.
Yahoo!, Inc., 565 F.3d 560, 564-66 (9th Cir. 2009) (construing
§ 230(c)(1)).
As today’s opinion makes clear, however, immunity under
§ 230(c)(2)(B), as opposed to (c)(1), is aimed at providers of blocking
software and does not hinge on the defendant’s speaking or publishing
content. Thus, the legislative history the parties cite is not helpful in deter-
mining the exact boundaries of what Congress intended to immunize.
Whatever those exact boundaries, I doubt Congress intended to leave vic-
tims of malicious or anticompetitive blocking without a cause of action,
and no party has affirmatively argued that it did.
7994 ZANGO, INC v. KASPERSKY LAB, INC.
In Congress’ judgment, immunity is necessary to facilitate
users’ access to blocking software that makes Internet use
“safer” than it otherwise would be. See § 230(b)(4). It would
be an abuse of this immunity to apply it to blocking activity
of the kind I have hypothesized here. Nevertheless, until Con-
gress clarifies the statute or a future litigant makes the case
for a possible limitation, I agree that Kaspersky qualifies for
immunity under this broadly worded statute.