The Ninth Circuit has issued a Section 230(c)(2) opinion that creates significant problems for anti-spyware/spam/virus vendors (I’ll call them “anti-threat vendors”). The ruling will paralyze their decision-making, expose them to greater legal threats, and reduce their ability to protect consumers from unwanted software. This ruling makes the Internet less safe. I hope the Ninth Circuit will fix it via further proceedings.

Nevertheless, the majority’s legal standard creates two obvious and significant problems. First, many spammers, virusmakers, and adware/spyware makers will claim–legitimately or not–to be direct or partial competitors with anti-threat vendors. In those situations, the threat purveyors will naturally claim that the blocking was motivated by anticompetitive animus. In fact, I would expect such anticompetitive animus claims to be routine for blocked entities, not an exception. Indeed, as the dissent noted, Zango claimed (not credibly) its adware was competitive with Kaspersky’s anti-threat software.

I would say it will be the AV companies facing bogus lawsuits who will lose the most, and probably not users, but it’s a bit of a pickle.