by Julio Rivera | December 6, 2017 12:03 am
Using what amounts to an error by Congress in legislative language, one Silicon Valley giant has limited consumer choice for one of the more vital products in the information age: Anti-Malware Software
What was tantamount to a typo in legalese has afforded the power to one company to effective usurp the will and desire of a competitor’s customer base.
In a case originally filed in Federal Court for Southern District of New York by Enigma Software Group, LLC vs. Malwarebytes, Inc.(Case 1:16-cv-07885), Enigma software contends that Malwarebytes has purposely harmed its competitor Enigma software.
As a result of Enigma Software filing a suit against Bleeping Computer, LLC in which Malwarebytes was subpoenaed to produce documents that looked to establish the true commercial relationship between Bleeping Computer and Malwarebytes, according to the lawsuit, “Malwarebytes unilaterally revised the ‘criteria’ it uses to identify PUPs in October of 2016 and announced the revision to the public through a blog post by its CEO. This was Malwarebytes’ first announced change in its PUP criteria since 2013, and the new ‘policy’ included only subjective criteria that Malwarebytes could, and has, implemented at its own malicious whim to identify SpyHunter 4 and RegHunter as PUPs and ‘threats.’”
“PUPs” or Potentially Unwanted Programs are automatically quarantined and disabled as “threats” by Malwarebytes software for its users. Malwarebytes PUP criteria was then changed to include various extremely arbitrary and vague terms, such as “diminished user experience.”
The targeted software in question, Enigma Software’s SpyHunter 4, has scored high grades from independent testing laboratoriesin 3rd party testing for its effectiveness in blocking malware and threats on user’s computers.
The defense was upheld using a flakey interpretation of The Communications Decency Act (CDA § 230(c)(2), entitled “Protection for ‘Good Samaritan’ blocking and screening of offensive material).
The statute reads, “No provider or user of an interactive computer service [“ICS”] shall be held liable on account of:
(A) any action voluntarily taken in good faith to restrict access to or availability of 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; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1.”
Subsection “B” is connected to Subsection “A.” Congress however made a grammatical mistake in Subsection “B” in stating that, “any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1.” They you would assume, should have correctly written it as, “any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph A.”
“Paragraph A” states that if you are going to restrict access, it should be done in “good faith”. Malwarebytes contends that in their reliance on subsection “B” there is no good faith requirement because the words “good faith” aren’t included in the language.
Malwarebytes, in that interpretation has free reign to operate in bad faith! If you were a CEO in the software, or a number of many other industries, and a competitor had the legal recourse to exercise this type of power they could in theory and application exercise unlimited abusive power to damage your companyas well as severely limit customer choice.
Adding to the severe unfairness in this matter is the fact that based on Malwarebytes desires and the court’s interpretation of the statute, not only can Malwarebytes block any competing product, but any anti-virus software can block their competitors at will, giving customers the option of only using one program to protect their devices. Such an arrangement would be not be consistent with recommended practices within the cybersecurity industry where it is generally thought that users are better protected by having multiple layers of anti-virus software.
This case is about Choice vs Unrestrained Power. Choice is generally a good thing. This case is important for the future of consumer choice as Malwarebytes is attempting to operate a monopoly advocating unlimited and unchecked power to harm competitors. They are disregarding the average consumer who would rather sample the individual pros and cons of the variety of software choices available to them. Advocacy groups should also make it a point to ask for a good faith requirement surrounding any decision by software or other type of companies to block, disable or otherwise render useless software programs or goods and services created by or offered by a competitor.
This case is now headed to the Court of Appeals in the 9th Circuit.
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