Asurvio LP v. Malwarebytes, Inc.

Background

Asurvio alleged that Malwarebytes categorized Asurvio’s DRIVER SUPPORT and DRIVER DETECTIVE software as malware or a “Potentially Unwanted Program,” warned Malwarebytes users that the software was a threat, quarantined it, and advised users to uninstall it. Asurvio also alleged that Malwarebytes barred customers from Asurvio’s websites, redirected clicks from Asurvio-related search results to Malwarebytes’ website, and was responsible for negative statements on Malwarebytes’ forum and elsewhere.

Asurvio asserted five claims: violation of the Lanham Act, business disparagement, tortious interference with contractual relations, common-law unfair competition, and violation of the Texas Theft Liability Act. Malwarebytes moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing principally that the Communications Decency Act provided immunity for its filtering software and for statements posted on its online forum.

Section 230(c)(2)(B) immunity

The court held that Section 230(c)(2)(B) protected Malwarebytes from liability for claims based on its filtering software. That provision generally protects providers of software that give users technical means to restrict access to material the provider or user considers objectionable.

The court distinguished a prior related proceeding involving Malwarebytes and a competing security-software provider. In that proceeding, the Ninth Circuit held that Section 230(c)(2) did not provide immunity for blocking a competitor’s program for anticompetitive reasons. Here, the court found that Asurvio sold driver-update software and did not allege that its software primarily identified and classified malware. Malwarebytes, by contrast, sold malware-detection software. The court concluded that Asurvio could not plausibly allege that the companies were direct competitors. It therefore held that all claims based on Malwarebytes’ filtering were subject to dismissal without leave to amend.

Section 230(c)(1) immunity

Section 230(c)(1) generally prevents treating an interactive computer service as the publisher or speaker of information provided by another content provider. Malwarebytes argued that this provision protected statements posted by forum users identified as “Porthos” and “exile360.”

The court held that Asurvio had not pleaded enough facts to support a plausible inference that Malwarebytes was responsible for the users’ “Trusted Advisor” and “Expert” designations or for the content of their posts. The court therefore held that Section 230(c)(1) immunity applied to the alleged negative statements on Malwarebytes’ forum.

Other pleading deficiencies

The court also held that, even without statutory immunity, all of Asurvio’s claims were subject to dismissal for failure to state a claim. It found that the statements describing Asurvio’s products as potentially unwanted programs, using “false positives,” “bogus,” a “scam,” or “snake oil” were not adequately alleged to be verifiably false rather than subjective opinions. Asurvio’s allegation that the statements were “categorically false” was conclusory.

Because those statements were not actionable, the court concluded that the related unfair-competition claim also failed. The tortious-interference claim failed because Asurvio did not identify a specific contractual obligation with which Malwarebytes interfered and did not plead facts showing willful and intentional interference with such an obligation.

Disposition

Judge Edward J. Davila granted Malwarebytes’ motion to dismiss the second amended complaint. The court stated that the dismissal was without leave to amend because further amendment would be futile.