bleeping computer – Techdirt (original) (raw)

Shady Anti-Spyware Developer Loses Lawsuit Against Competitor Who Flagged Its Software As Malicious

from the respect-us,-they-sued dept

Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn’t known so much for containing threats as it’s known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn’t a good fit for most users… or really any users at all.

Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma’s dubious product, dubious customer service tactics (like the always-popular “auto-renew”), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes’ developers, who tossed $5,000 into Bleeping Computer’s legal defense fund.

The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time.

Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., “tortious interference.” According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans.

The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity.

Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky’s blocking of Zango’s adware to be immune from Zango’s claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity.

Enigma argued the decision clearly stated the removed material must be “content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” It claimed its software fell under none of those headings. The district court disagrees:

Enigma overlooks Zango’s clear holding that § 230(c)(2)(B) immunity applies to “a provider of computer services that makes available software that filters or screens material that the user or the provider deems objectionable.”

[…]

This interpretation of Zango aligns with the plain language of the statute, which likewise states that immunity applies to “material that the provider or user considers to be . . . objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). In Zango, the provider of the anti-malware software, Kaspersky, exercised its discretion to select the criteria it would use to identify objectionable computer programs. The Ninth Circuit held that malware, as Kaspersky defined it, was properly within the scope of “objectionable” material. In that respect, the Court agrees with Malwarebytes that Zango is factually indistinguishable from the scenario here.

In its final attempt to skirt Section 230 immunity, Enigma attempted to resculpt its arguments into a half-assed Lanham Act complaint. But the court has zero sympathy for Enigma’s attempt to drag trademark into this.

Enigma’s argument fails because its complaint does not allege an intellectual property claim. The Lanham Act contains two parts: one governing trademark infringement (15 U.S.C. § 1114) and one governing unfair competition (15 U.S.C. § 1125(a)). The unfair competition provision, in turn, “creates two distinct bases of liability”: one governing false association (15 U.S.C. § 1125(a)(1)(A)) and one governing false advertising (15 U.S.C. § 1125(a)(1)(B)). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). Enigma’s complaint asserts a false advertising claim under § 1125(a)(1)(B). FAC ¶ 135.

Enigma does not assert claims under the trademark provisions of the Lanham Act. The complaint does not allege that Enigma owns trademarks or any other form of intellectual property, nor does it allege that Malwarebytes has committed any form of intellectual property infringement, including misuse of its trademarks. Accordingly, the Court finds that Enigma’s false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), does not arise under a “law pertaining to intellectual property” under 47 U.S.C. § 230(e)(2).

Enigma loses, Malwarebytes wins, and status remains quo until the inevitable appeal. Enigma seems to believe it can sue its way into respectability — somehow failing to realize every lawsuit against competitors and critics moves it several steps in the opposite direction.

Filed Under: lists, malware, reviews, scans, spyhunter, tortious interference
Companies: bleeping computer, enigma, malwarebytes

Enigma Software Countersued For Waging A 'Smear Campaign' Against Site It Claimed Defamed It

from the ctrl-alt-middlefinger dept

Enigma Software — creator of the SpyHunter suite of malware/adware removal tools — recently sued BleepingComputer for forum posts by a third-party volunteer moderator that it claimed were defamatory. In addition, it brought Lanham Act trademark infringement claims against the site — all in response to a couple of posts that portrayed it in a negative light.

The posts pointed out that the company had a history of threatening critics with litigation and had engaged in a variety of deceptive tactics, including triggering false positives to promote its spyware-cleaning products and placing paying customers on a periodic payment plan that ran in perpetuity under the guise of a one-time “removal” payment.

A somewhat bizarre decision by the judge presiding over the case allowed Enigma’s questionable complaint to survive BleepingComputer’s motion to dismiss. In doing so, the decision also suggested the judge was willing to poke holes in Section 230 protections — something that’s been happening far too frequently in recent months.

This bogus lawsuit should never have gotten this far. Enigma’s original defamation claims contained wording found nowhere in the posts it didn’t like, and the company had to make several inferences on behalf of the website it was suing to cobble together its complaint. The lack of a decent anti-SLAPP law in New York kept its defamation claims from being ejected on arrival. Faced with having to litigate its way out of this stupid mess, BleepingComputer has gone on the offensive.

The assertions made in its countersuit suggest Enigma Computer has been — for quite some time — fighting speech it doesn’t like (the forum posts it sued over) with more speech. Unfortunately, if the “more speech” deployed is just shadiness and bogus claims (the same sort of thing it’s suing BC for), then “more speech” isn’t really a remedy.

Lawrence Abrams of BleepingComputer gives a brief overview of the latest filing at his company’s website. (h/t The Register)

Yesterday, BleepingComputer filed its Answer, Affirmative Defenses, and Counterclaims in response to Enigma Software’s Second Amended Complaint. In our filing we stand by our statements that Bleeping Computer has done nothing wrong, that there is no smear campaign against Enigma Software, and that any of the statements posted by the site’s volunteer, Quietman7, are either true or purely opinion.

On the other hand, since being sued we have uncovered information that makes us believe that Enigma Software or their agents have been allegedly performing a long term campaign of attacks against BleepingComputer.com.

Our counterclaim includes examples of the following:

Furthermore, in all of the above examples, the sites are or have been promoting Enigma’s SpyHunter product.

The filing [PDF] fills in the details. Enigma (or its agent) has been creating websites that funnel users to its SpyHunter product while simultaneously suggesting BleepingComputer and its tools are malware.

One site is called Adware Bleeping Computer Removal, which hints that “Bleeping Computer” is something that is unwanted and in need of removal. Sure enough, the site offers instructions on how to remove adware while providing a handy link to download SpyHunter. Another Enigma software-pushing site uses the URL bleepingcomputerregistryfix.com.

Others are hidden behind URLs a bit more innocuous. Enginemachinesupplyshop.com contains pages that claim two tools BleepingComputer has created — RKill and Unhide — are “malware/viruses” that “infect” users’ computers and should be removed. Naturally, the site recommends SpyHunter. It also includes statements that seem far more defamatory than any of the allegations Enigma is suing BleepingComputer for.

rkill.com is a dangerous computer virus which can destroy the infected computer and record your personal information. If you’re not careful when you visit websites or use online resources, your computer is vulnerable to virus attacks. It has the ability to slow down the computer performance seriously. The computer user’s personal information may be got by the virus makers through the virus, such as credit card or bank account details and social contacts’ information. Therefore, the best way to cancel the malicious behaviors of rkill.com is to get rid of it as soon as possible.

This is what RKill actually does.

RKill is a program that was developed at BleepingComputer.com that attempts to terminate known malware processes so that your normal security software can then run and clean your computer of infections. When RKill runs it will kill malware processes and then removes incorrect executable associations and fixes policies that stop us from using certain tools. When finished it will display a log file that shows the processes that were terminated while the program was running.

BleepingComputer provides this utility free of charge to users.

The entire filing is worth reading to see just how much Enigma has allegedly done in an attempt to do damage to BleepingComputer’s reputation. From what’s shown here, it looks as though Enigma’s history as a shady, litigious pusher of dubiously-effective software isn’t exactly history. It’s still very much a part of its reputation management scheme — one that does nothing to elevate Enigma’s esteem and everything to drag critics in the same business down to its level.

Filed Under: cda 230, free speech, reviews, slapp, smear campaign, spyhunter
Companies: bleeping computer, enigma software