Enigma Software Group USA, LLC v. Malwarebytes, Inc.

• Author: Pisula, Allie
• Position: Content blocking for anticompetitive reasons rulings

TABLE OF CONTENTS ENIGMA SOFTWARE GROUP USA, LLC v. MALWAREBYTES, INC. 272 FRANK V. GAOS 276 MOZILIA CORP. V. FCC 280 PATEL V. FACEBOOK, INC. 286 PROMETHEUS RADIO PROJECT V. FCC (PROMETHEUS IV) 290 ROSENBACH V. SIX FLAGS ENTERTAINMENT CORP. 297 IN RE ZAPPOS.COM, INC. 300 946 F.3D 1040 (9TH CIR. 2019)

InEnigma Software Group USA, LLCv. Malwarebytes, Inc., the United States Court of Appeals for the Ninth Circuit reversed and remanded the district court's decision to grant the defendant's motion to dismiss all four claims brought by plaintiff. (1) The court held that the "otherwise objectionable" clause of 47 U.S.C. [section] 230(c)(2) does not include blocking content for anticompetitive reasons and that, since all four of Enigma's claims alleged anticompetitive behavior by Malwarebytes, the district court wrongly dismissed the claims. (2)

1. BACKGROUND

   Section 230(c)(2) of the Communications Decency Act (CDA) contains an immunity provision, called the "Good Samaritan" provision, that allows internet-service providers to restrict access to "material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" without being subject to liability for offensive content. (3)

   Congress enacted the Good Samaritan provision primarily in response to Stratton Oakmont, Inc. v. Prodigy Services Co., which held that when a service provider chooses to filter some offensive content, that provider takes on the responsibility for any non-filtered offensive content, regardless of the provider's degree of knowledge of such content. (4) Some members of Congress, such as Representative Chris Cox, spoke up against this ruling, saying that it deterred creation of filtering software. (5) A driving force behind congressional desire for filtering software was to restrict the availability of online pornography to children. (6)

   In early 1996, Congress adopted two different approaches to the issue raised by Stratton Oakmont: the Exon-Coats amendment and the Online Family Empowerment Act (OFEA). (7) The Exon-Coats amendment, which attempted to stop pornography from dissemination, was invalidated by Reno v. ACLU. (8) OFEA, however, was enacted as [section] 230(c)(2) and successfully overruled the Stratton Oakmont decision by allowing internet-service providers to claim immunity for offensive content liability when filtering certain third-party content. (9)

   Although filtering pornography was the main...