I’m afraid I don’t have time to blog more about this now, but I thought I’d note it, since it seems like a pretty important cyberspace law decision. The case is Zango, Inc. v. Kaspersky Lab, Inc., handed down today by the Ninth Circuit.
Thanks to How Appealing for the pointer.
Fub says:
From the decision, FN 3:
ReaderY says:
If a company provided both
(a) an update feature on its products (involving multiple users accessing a server) amd (b) a token filter that restricted access to a single pornographic website),
would it then have complete immunity to block access to whatever it wanted, e.g. websites on competitors products or consumer websites containing negative reviews of its products?
The opinion appears to leave the definition of “objectionable” completely undefined and equally within the discretion of the consumer and the provider? It’s a broad term. What does it mean? What happens if the provider’s concept of what it considers “objectionable” turns completely different from the consumer’s? Does the provider have to even consider consumer’s interests or Congressional purposes in making such a determination or is its discretion absolute under the safe harbor? What happens if the provider’s concept of “objectionable” is so so different from the ideas Congress appeared to have had in mind or from consumers’ perception of their interests, indeed so self-serving, that consumers might think its blocking behavior against their interests and malicious?
Does the safe harbor, with these critical terms left undefined, open the door for companies to block access to each other’s products as a competitive tool?
Can a virus-maker get the statute’s protection simply by blocking one objectionable site and linking to a server, with immunity to block access to whatever it wants — the entire internet if the virus-maker has Luddite-type objections to the internet as a whole?
After all, a key difficulty this case illustrates is that one person’s “filtering” may be another’s “service disruption”. Perhaps all that perveyors of service disruption have to do is get a little legal advice and jump through a few simple hoops to get their disruptions to fit into the definition of “filtering” and into the protection of the safe harbor.
ReaderY(Quote)
ReaderY says:
If the 9th Circuit had given “otherwise objectionable” some sort of limiting definition and provided for review to see whether the blocked party might be perceived by a reasonable person as possibly fitting that definition, it would be a different case (although not a different outcome — the existence of the FTC consent decree against Zango would likely be sufficient by itself to invoke the safe harbor under any reasonable limiting definition of “objectionable”.)
But by expressly declining to do this, and leaving the meaning of “objectionable” to reflect whatever the filterer objects to, the case appears to open up the prospect of unexpected kinds of objections leading to filtering being used for offensive as distinct from purely defensive purposes — perhaps even protecting kinds of filtering that consumers find so offensive that they might consider the filtering itself to be malicious.
ReaderY(Quote)
zippypinhead says:
Clearly a correct decision under the controlling safe harbor language of the CDA. But Judge Fisher’s concurrence is even more interesting than the actual holding:
xyzzy says:
Its_real says:
At least one botnet trojan does “improve” security of the zombie and prevent/clean infections of a number of other trojans.... so the PC will not experience slowdowns and problems from multiple infections — this prolongs the “life” of the zombie for the botnet.
Its_real(Quote)
AnthonyJ says:
Pretty sure Conficker is illegal on other grounds, though in theory if you deliberately installed it it would be legal for it to block your access to AV sites.
AnthonyJ(Quote)
Best Virus Protection – Kaspersky Anti-Virus says: