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Kaspersky Wins Important Ruling for the Anti-Malware Industry

Posted by CowboyNeal on Sat Sep 01, 2007 08:15 AM
from the seperating-bad-from-good dept.
Government The Courts Security News
ABC writes "Zango sued Kaspersky Lab to force the Company to reclassify Zango's programs as nonthreatening and to prevent Kaspersky Lab's security software from blocking Zango's potentially undesirable programs. In the important ruling for the anti-malware industry, Judge Coughenour of the Western District of Washington threw out Zango's lawsuit on the grounds that Kaspersky was immune from liability under the Communications Decency Act."
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Kaspersky Wins Important Ruling for the Anti-Malware Industry 50 Comments More /

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  • Wow, what a name... (Score:4, Funny)

    by Anonymous Coward on Saturday September 01 2007, @08:27AM (#20433143)

    "In the important ruling for the anti-malware industry, Judge Coughenator of the Western District of Washington threw out Zango's lawsuit on the grounds that Kaspersky was immune from liability under the Communications Decency Act."


    Poor guy, that Coughenator...his lungs must be shot.
  • Nice decision. I thought Kaspersky was a Russian operation though, was there really standing to sue them in a US court?

    • Re: (Score:2, Informative)

      by zoomshorts (137587)
      Kaspersky Labs is a Russian concern, a really nice AV product.
      Eugene Kaspersky is a fantastic programmer and has always
      had his hand in the business of stopping those sneaky bastards
      who send us viruses and trojans and malware. :P
      • Let's see now, too fast through the pentameter, failing to stop at an enjambment, yup, I'm going to need to see your poetic licence, son.
    • Of course. Russia is part of the US judicial system. So is the rest of the world, like Montana and Oregon.
      • ``Of course. Russia is part of the US judicial system.''

        As we _should_ all know, really. I mean, otherwise arresting Dmitry Sklyarov [wikipedia.org] would have been out of bounds. And we all know that wasn't the case; to say otherwise would be blasphemy. You can't violate the DMCA in Russia and walk free!
      • ``Russia is part of the US judicial system. So is the rest of the world, like Montana and Oregon.''

        Are you sure you aren't confusing Russia [wikipedia.org] and Georgia [wikipedia.org]? Err, I mean Georgia [wikipedia.org].

    • Re:In Soviet Russia... (Score:5, Informative)

      by jonbryce (703250) on Saturday September 01 2007, @08:54AM (#20433303) Homepage
      They have offices in the US, from which they sell their software to US customers.

  • Wait, what? (Score:5, Funny)

    by slughead (592713) on Saturday September 01 2007, @08:33AM (#20433181) Homepage Journal
    OK, well on the box, why don't they just say "Removes spyware, malware, viruses... and Zango"

    Wouldn't that take care of the legal problem?

  • CDA Trumps Constitution? (Score:4, Interesting)

    by Anonymous Coward on Saturday September 01 2007, @08:39AM (#20433217)
    "the Communications Decency Act, part of which states: "No provider or user of an interactive computer service shall be held liable on account of 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 any action taken to enable or make available to information content providers or others the technical means to restrict access to [such] material.""

    I don't like this at all. It seems to me to indicate that my ISP can block me from p0rn, for my own good, and I have no recourse. And it doesn't matter if it is constitutionally protected material? WTF?

    • Re:CDA Trumps Constitution? (Score:5, Insightful)

      by garett_spencley (193892) on Saturday September 01 2007, @09:07AM (#20433375) Journal
      IANAL but I don't think it means that you ISP could block access to material at their discretion.

      "No provider or user of an interactive computer service shall be held liable on account of 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 any action taken to enable or make available to information content providers or others the technical means to restrict access to [such] material."

      So what I take from that is that you have to want the service to block said material AND said service must be "interactive", which I assume means that you have to run it yourself and have a direct say in what it does.
      • Wrong

        No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers . . . This means that the ISP is not liable for its censorship.

        No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers . .

        • Your ISP is not an interactive computer service. If the filtering service were interactive, you'd be able to switch it on and off, or at least have some control over what's being filtered. If that's the case, what are you complaining about? Just turn it off. Otherwise, the law doesn't apply.
        • An ISP is not a book store. In most areas it is one of a very narrow range of choices for internet access. It is also quite different than deciding not to offer a service, it is like the post office deciding which books you can have sent to you. It has to go to great expense to deny you access. This is an insidious form of censorship disguised as the free market.

    • I don't like this at all. It seems to me to indicate that my ISP can block me from p0rn, for my own good, and I have no recourse.
      You have recourse. Change ISP.
      • The government can't block porn, but they can make it easier for others to do it. They can also make it more difficult for companies to make it available.

        The government used 18 USC 2257 for that. 2257 requires the producers of porn to get IDs for the people in porn movies. Seems sensible, right? Well, they have played with it. 1. They only permit the use of US ID if you make it film (pictures, etc) in the USA (to get on the plane you have to show government ID). That means, the I can't do movies with the S
      • You can choose another ISP, or use some other method, i.e. having a copy mailed to you or even sneakernet, to legally get any material that isn't legally obscene. The law doesn't count the ISP's actions as censorship, in part because of all the other legal alternatives, including alternatives that exist even in places where there is no choice of ISP.
        There's a huge and increasing gap between De Facto, and De Jure here. With Copyright law and the DCMA as they are, those other alternative

  • Surprised and gratified (Score:3, Interesting)

    by golodh (893453) on Saturday September 01 2007, @08:40AM (#20433223)
    Well ... I'm surprised and gratified that in this case the law actually protects users instead of companies out to turn a buck. That isn't always the case I feel.

    And yes, I think the immunity is for the right reasons: there are lots of advertisements and pieces of commercial attention-grabbing software that I don't want on my system. I don't care a hoot if that's fair or not w.r.t. whatever company thought they'd bring out such software. I just want to be able to prevent it from installing.

    So any anti-virus software, anti-spyware software like Adaware is something *I* run, and what they remove or disable they do so on *my* authority.

    I'm just relieved to see that not every random company out there can sue them for providing me the service I ask for on my own computer.

    • ``I'm just relieved to see that not every random company out there can sue them for providing me the service I ask for on my own computer.''

      But that's not what the law says, now, is it?

      I think this law is bad. The fact that it was used to obtain an outcome that many people find desirable doesn't change that.

  • Good result. Questionable Logic. (Score:4, Interesting)

    by Compulawyer (318018) on Saturday September 01 2007, @08:45AM (#20433241)
    I have not read the full opinion yet, but I am at a loss to see how this fits under the CDA's definition of an "interactive computer service." I thought that Kaspersky, like most virus detection programs, ran as a process on the user's machine and only connected to a server for definitions updates. if so, I can't see how that classifies as an "interactive computer service" under the act. Then again, maybe I'm just not being creative enough in my statutory interpretation.

    • I thought that Kaspersky, like most virus detection programs, ran as a process on the user's machine and only connected to a server for definitions updates. if so, I can't see how that classifies as an "interactive computer service" under the act.

      You don't have to be an interactive computer service to get protection. Creators of utilities for this type of blocking are protected too. The utilities don't even have to be intended for use in an interactive computer service. See this part of the law text (copi

    • The answer's in TFA, basically the entire penultimate paragraph. In part it says, "Users can adjust the settings to allow certain programs of their choice to come through at all times." That's interactivity.
      • I acknowledged that point - that does not mean that it qualifies as an "interactive service" as that term is used by the statute.
      • That does not seem to be enough to qualify as an "interactive service" as that term is used in the statute. Just the act of downloading updates fits a broad technical definition - but the statute is clearly focused on blogs, websites, email providers, and the like. That is what the term was intended to encompass. This seems like a stretch as far as statutory interpretation goes.

  • Hooray! (Score:4, Funny)

    by Toad-san (64810) on Saturday September 01 2007, @08:54AM (#20433297)
    And god damn zango!

    I mean that in the nicest possible way, of course.

    Oh, and god damn their lawyers too.

  • Remember when... (Score:4, Interesting)

    by DigitalSorceress (156609) on Saturday September 01 2007, @09:02AM (#20433355)
    I remember "back in the day" when spyware was still something you needed a separate scanner (Ad-Aware, Spybot S&D, etc..) for.

    My pet theory was that since a lot of the spyware was coming from legit (but questionable) companies, the major antivirus players were afraid of touching it due to the threat of these kinds of lawsuits. Even though spyware and malware has since grown to such a pervasive problem that the big AV firms have gotten on board, I bet they were all watching the outcome of this suit. I for one am really happy that the ruling went in Kaspersky's favor, and shudder to think what would have happened if it hadn't.

    Hopefully this ruling will send notice that you can't hide behind "restraint of trade" to keep antivirus / antispam programs from calling a spade a spade.
    • ``I for one am really happy that the ruling went in Kaspersky's favor, and shudder to think what would have happened if it hadn't.''

      Companies would stop detecting spyware, and people would run away from Windows, screaming in terror?

      Ah...one can dream.

      • Re: (Score:3, Interesting)

        by Khaed (544779)
        As someone who ran away from Windows, screaming in terror, I have to say: Probably not.

        I went to Linux exclusively over a year and a half ago, but I'm not about to recommend it to most non-techies I know. Even when I've cleaned all the crap off of their computers that they accumulate in the form of spyware and viruses. I have no experience with Mac or any BSD variant, so I can't recommend that, either.

        Warts and all, Windows is what most people know, and most aren't interested enough to learn anything new

    • Re:Remember when... (Score:5, Informative)

      by UbuntuDupe (970646) * on Saturday September 01 2007, @10:04AM (#20433701) Journal
      I remember "back in the day" when spyware was still something you needed a separate scanner (Ad-Aware, Spybot S&D, etc..) for.

      Uh, someone remind me what the modern way to remove spyware is?

      I still use those programs :-/
      • Uh, someone remind me what the modern way to remove spyware is? I still use those programs :-/

        The programs are a convenience (friendly GUI, progress dialogs, etc.).

        Determining what files are sitting on your hard drive, what settings (startup, etc.) are contained in your registry, or what programs or services are currently running on your system, etc., etc., doesn't require the installation of any these "scanner" programs. It's basic administration. Boring job, maybe, but it's a fact of life. And no more

        • Re:Remember when... (Score:4, Insightful)

          by UbuntuDupe (970646) * on Saturday September 01 2007, @11:34AM (#20434289) Journal
          Right, because everyone knows how to find the registry, everyone knows how to find how to find the registry, everyone knows how to interpret the registry, everyone knows how to kill programs running as "SYSTEM" and keep them from running again, and all malware is immediately obvious as being on your hard drive.

          You're an idiot.

    • So what does this mean to actions to block Microsoft's famous Windows Genuine Advantage? I have a lot of respect for judges - sometimes they can slide a ruling and paint it so perfectly for the issue at hand that everyone applauds... and then hand their superior court a precedent for their higher level case ... that earns them a standing ovation.

      At what level is WGA different from Zango's claim, on the legal level?

    • Usually when their attempts at defamation / trademark infringement rulings fail, they go right for the deep end of tort law - "interference with contract" (user agreed contractually to install this trash) or "tortious interference with prospective economic advantage"...that one's a hoot.

  • hmmm (Score:5, Interesting)

    by g0dsp33d (849253) on Saturday September 01 2007, @09:09AM (#20433383)
    I'm as much of a fanboy of the stick it to malware developers movement, but this is kind of sets off a few flags.

    Kaspersky was immune from liability under the Communications Decency Act, part of which states: "No provider or user of an interactive computer service shall be held liable on account of 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 any action taken to enable or make available to information content providers or others the technical means to restrict access to [such] material."


    It will be interesting to see two things: 1) how this cause stands up when something like Nortan AV "accidentally" gets blocked; 2)IANAL, but shouldn't this cover DRM? It falls under otherwise objectionable at the very least (filthy too, IMHO).

    • Re: (Score:2, Informative)

      by m50d (797211)
      1) how this cause stands up when something like Nortan AV "accidentally" gets blocked

      They'd have a hard time claiming that was done in "good faith".

      2)IANAL, but shouldn't this cover DRM? It falls under otherwise objectionable at the very least (filthy too, IMHO)

      Does it come under "material" though? It's not as if the DRM is in a few bits on the end you can knock off, you have to extract the data out of the DRMed format it's in.

  • 1) I'm unclear what law Kapersky violated that even allowed them to bring this suit. The closest thing I can find is "[Kapersky] has asked for unspecified monetary damages and an injunction forcing Zone Labs to cease its current classification of the products." but that's not clear enough.

    2) The CDA provides protection for "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 vio
    • '' I'm unclear what law Kapersky violated that even allowed them to bring this suit. The closest thing I can find is "[Kapersky] has asked for unspecified monetary damages and an injunction forcing Zone Labs to cease its current classification of the products." but that's not clear enough. ''

      Probably interference with business. Wait until drug dealers start suing the police for interfering with their business.

      '' The CDA provides protection for "any action voluntarily taken in good faith to restrict access t
  • Upon install, have the user OK that the program will block anything that is believes to be dangerous (as in malware, virus, etc). Once the user has given permission, it does not matter what a 3rd party wants. ABout the ONLY party who has a case is MS, or Apple, or the unix or BSD company. This would probably not be needed for any GPL OS including Linux, Minix, HURD, etc as they gave nearly all rights to the end-user.

  • Congratulate Zango (Score:4, Funny)

    by Porchroof (726270) on Saturday September 01 2007, @09:47AM (#20433597) Homepage
    Using its own form, I sent a message to Zango congratulating it on losing the lawsuit.

    Why don't all of you do the same?

    zango.com [zango.com]
    • Heh, I don't recommend clicking this link if you use IE.
    • I would but there appears to be no way to send and detonate suitcase nukes though their form. Needless to say, I hate them and there software more than death. Zango pops up ads and, has a large memory footprint and can bring single core, midrange, Athlon 64 based computers to their knees. In the limited methods I used, using Add/Remove Programs, using their own removal app, running Spybot, running Spybot at Startup, ending the Zango process, deleting the in use Zango app, there seems to be no way to dele
      • Here goes mine:

        Thanks for easing my decision on which antivirus I'll be choosing. Kaspersky seems not only to be a lightweight antivirus program, but also an extremely accurate one!

  • Zango (Score:3, Informative)

    by Khaed (544779) on Saturday September 01 2007, @09:21PM (#20437453)
    I actually had to look up who they were, because I honestly had no idea. Not that I've never had to deal with spyware on a windows machine, just, I never paid enough attention to the names. I knew of Gator and Cool WWW Search by name before reading this.

    I'm a little surprised they had the balls to bring a lawsuit about. Their hotbar apparently sends surfing habits back, they display pop ups, and it's somewhat of a bitch to uninstall -- my first question to their lawyers would be "So how are you NOT malware?"

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