software that they use for years to protect their computers now of rights is asking for this immunity under a good samaritan statute section two thirty and they're asking for it even though they know uses have downloaded purchased renewed and enjoyed protection for their p c s for almost twenty years running from viruses malware and other potential problems the section actually purchased the enigma software yes many of them have kircher st ignace software and when out of the blue after not blocking us for eight years of both competing in business those users woke up one morning in october  sixteen and found their software being blocked software they had already paid for software they had subscriptions for and software that many of them had renewed before and were going to renew again kelsey you said many of them have purchased enigma software what percentage of the users han't actually purchased enigma software well ya know as of the time of the filing of the first amended complaint we already had over three hundred complaints of people who were having trouble using their ridiculous software that number against a total sales is not something i have and it's not something that we had looked at for purposes of today we obviously expect and could do that and would the test being proposed by mauer bias is a test that violates the express words purpose policy and title of the statute but let me ask you this think the key the key phrase in the statute to me appeared to be the phrase and offensive material and you do you agree with that that that that is important i believe the statute and deed the statute title good samaritan gives protection from liability for blocking obscene and offensive material obscene and offensive material are actually laid out in six categories in the statute lascivious excessively violent and none of those fit our programme our programming is not the program that was involved in sango whatsoever what about otherwise objectionable and otherwise objectionable under the canon of the juice them generous that is a residual clause in the sentence that is limited and defined by the preceding seven words those preceding seven words give meaning to what otherwise objectionable means the cases of song fine and goddard at the northern district of california both have held exactly that point which i understand the not binding on this court but there are certainly excellent families from receiving into their homes sexually obscene pornographic material so the whole purpose of the statute originally derived from a concern over making sure that there was maximizing user control over what was going to be received otherwise objectionable is a phrase that has to be defined by the parameters of the category of said because it doesn't say  then that phrase doesn't have an open ended meeting if the statute were to be read for the phrase otherwise objectionable to mean anything that now by its wanted congress would not have needed to add the preceding seven words congress would not have added obscene lewd lascivious and the other words it would have just said any material that's found to be objectionable but that was a long time ago that's a really a long time ago and the statute has been used to go way beyond maybe even what congress thought they were dealing with but we made apologist policy decision and it's been the ninth circuit case at issue here did it too to say  don't want invasions of privacy and tracking and other things those are objectionable to as long as there are a way to highlight it and say you may not want to use this and then it's up then it's considered in this safe harbor and your honor the enigma programming that has been blocked here does not have any of those features to begin with is angle case did not decide the question of what other objectionable means that issue was waived and was not before the court and the court made that clear in the opinion and the question of weather certain content could fall within the phrase of otherwise objectionable i recognize that the courts have it have applied section two thirty in a way to allow for something more than the six categories but the six categories and the application of otherwise objectional is still something that goes to the nature of that type of content or creating the risk of a risk of damaging the files or of putting the user to risk of being introduced a pornographic material or the risk of some sort of a security breach of the potential wanted one they did that for anti competitive targeting reasons as we've explained in our papers and that is an after the fact self serving characterization that they have thrown out there trying to defend what is really a pretext and here particularly in a motion to dismiss said it just wasn't even a rule fifty six setting like zangwill in a motion to dismiss setting there should have been an opportunity for us to have discovery to show that this immunity they're asking is not a complete blanket immunity it's a defense they can assert but they still have to establish certain factors the reason i ask you that question is if the basis for for the blocking was the the characterization as harassing him potentially i want to does that take away your argument regarding the otherwise objectionable language no no you're on it doesn't because harassing can be that broad and that wide open in fact it is exactly the issues that judge fischer spotted in his concurrence and his angle opinion where he pointed out that if somebody were to read section two thirty in the manner malware by just proposing to this court and make it a ballot less purely subjective test then anyone could engage in anti competitive conduct any time they wanted and simply then say oh i'm going to hide behind section two thirty and section two thirty protects me because let me ask you this your concern is that this is being used for anti competitive purposes i take determined by the by the provider or a user this statute does say provider or user but this statute cannot be read to mean the provider can subject didley unilaterally decide all by itself without any regard to the other categories and the statute what it can block because of that were to happen your honor then everyone could decide to block everyone else and the very purposes of the statute as articulated in the language by congress to encourage and preserve free markets to encourage the development of blocking filtering technologies to maximize use of control all of those matters all of those policies would be completely blown apart would be violated by that type of totally subjective approach by any gun and let me ask you this because as judge last week noted this was the statute was passed a long time ago and i i to avoid the problem and then i had to conduct no on this the amendments to the communications decency act have actually been directed at what would be the child or sexual trafficking area not to this type of civil dispute but isn't that a recognition that the expectation is the market's going to take care of this problem if somebody is blocking people for no reason they because they'll become a pariah in and  word will get out this is a bad deal don't do this i mean look at kaspersky i mean they were the defendants and sango now they're that's the moscow people who infiltrated the last campaign i mean the these things have a way of coming around on them they also have a way of being abused and they're not supposed to be a get out of jail card as the court referred to in the internet friends case or a roommate to allow people to engage in mr bud's argument is that this is filtering software that consumers choose to download and use they have the choice they have the choice to search it out download it install it and if they don't like the way it works they can choose to use one of the many other filtering software options that are available fact that opposing counsel says he uses have also elected to purchase enigmas so how do we balance  security professionals consider to be problematic harassing damaging to individual computer users we consider them our bots considers enigma to be that type of of product and it consumers that if consumers want to if they don't agree with our bikes characterization and decision to block enigma software then the users have two options one is and this is in the complaint and it's somewhat disputed one option is they can restore the program they can continue to use it now and contends that this is not an easy function for consumers to use that's frankly it's likely to be an argument that any company who software is blocked is going to make about filtering software but on a motion to dismiss we have to take the allegations in the complaint it's true right that's absolutely true your honor and  fair reading of the complaint is and this is in excerpts of the record forty three forty five is not that there is no ability for the user to continue to use both products simultaneously but that they contend that  it's difficult and confusing for the user the other option and this is rec if that's truly the end is there really a realistic way for the user to opt out if it's made so difficult it's not that that's not the case and in any event this is not a requirement of section two thirty c to be this was the exact argument that was made before the ninth circuit in this ngo case made the exact same argument that it was difficult for users to whitelist or continue to use this ngo software including using the users who had affirmatively consented to use the saying go software and the court nonetheless held that that was not a requirement of the immunity in c to b if you were the one who made the argument that the user had the option that that is one option and i want to get to the second option the second option is that users don't have to use they don't have to use it at all if they decide that they don't like the filtering that malware bytes does they can choose to use a completely different software they have no obligation to use our software and this is this again goes to the free market dynamics that are at the heart of the statute congress and this is in two thirty b three wanted to encourage the development of technologies that maximize user choice and there is a choice here and this is also reflected in the concurrence of judge fisher which enigma relies on so heavily his concern was that there might be programs and he focused on w not what we are but there might be programs that surreptitiously block without any transparency to the user where the user has no idea what blocking is going on and that concerned judge fisher and his concurrence well he was also concerned about in a competitive motivations and i think he will and he want he was talking about as i read it he thought there ought to be some kind of good faith limitation which your position is there is not and you can do it bad thing our position is not about you our position is not that you can do it in bad faith it's our position is that that is not an element that we are required to show to invoke the immunity or that nor is it an element that they're required to prove that we acted or that they can get around the immunity by alleging we acted in bad what if discovery showed internal memos in your company where is identified as a potential competitor who is cutting into our market share in how can we stop them and this comes up as one of the ways that we can cause problems for our competitor would that change the dynamic here i think provide as long as there is a basis for the blocking that we've identified we being  that's not well that's that's not the facts before the court but but it splits herenton judge question i think the hypothetical would require a situation where the filtering software provider offered no basis for its filtering decision and didn't tell the consumers what it was doing if that were the case and they offered no basis publicly here  and this is on the record that our bikes has identified all the different criteria that it considers when it identifies a pup if that were not the case and it were just doing blocking without any explanation whatsoever then that key which we concede the court there did not address the issue of what otherwise objectionable means nonetheless it did apply the type of ad where commercial the terminology is overly narrow as the court has recognized the statute was enacted in one thousand nine hundred six in the legislative history there's lots of reference to accessing the internet via modems which is a far cry from the future and or from the present and the types of threats and potentially unwanted content that people are being exposed to now on the internet we're not even being imagined at the time and there's flexibility built into the statute with this terminology of otherwise objectionable three reflected in in congress as expressed purpose in the statute of encouraging the development of technical lot technological technological measures to filter content and to give users choice the jews didn't generous canada of statutory construction as enigma proposes to use it is not correct in this case that as this court recognized in or another more open ended general term are dissimilar then the the the more general term that follows them is to be construed more generally and in this case we have a list of six different dissimilar items some of them are similar like lewd and lascivious are often used sexually explicit but there are other things like harassing or excessively violent excessively violent material is not the same as lascivious or even harassing the only real common thread that binds them is that these are the types of materials that someone might find on wanted or might consider to be problematic and would not necessarily want to have them on their computer and to get to the council's point that this is should be an objective standard i think the plain language of the statute defies that the statute uses the term considers that the provider or the user considers that as a subjective term it also these all of these terms that are the seven  categories and to thirty c to be there in and of themselves subjective notions the idea of what's harassing or sexually explicit or lewd these are terms that are really subjective to the eye of the holder  they are not if congress wanted to establish a more rigid framework then they could have very specifically defined them and and then limited that them without using the term otherwise objectionable when you are you silly relying specific it's not one of the seven items listed but we we think that if you look at the otherwise objectionable and harassing yeah it is a category expansive category of what harassing is the type of software  that we considered considers to be a type of scare where that tells users that they have infections on their computers when in fact they don't and that's a necessary  have to look to the title yes yes the end that the title is the good samaritan blocking and screening of offensive material yes your honor is and then within two thirty suit to be there's further delineation of objectionable and we do consider this type of material offensive so what is your reaction to mr bud's point that you know somebody could be doing this for intake competitive reasons it's just an excuse how how is the market going to take care of that the market could take care of that by by consumer choice again users do not have to use our the providers of the interactive service and that's why they have to screen in good faith because often if if you are you know you're receiving the e mail through your web based email service or you're using a social network you may have no idea what's happening in the background when something is being blocked from your view whereas with are you are you are going to over grossly oversimplified that if if if if if if you were to block everything nobody would buy it exactly your honor and or if if we were to block to the overlay block and consumers would find it difficult to use their computers consumers are going to download our software thoughts if that's what happens but consumers have the choice to use our software and block pup's there are other software security software vendors out there this is record page thirty nine they've listed scores of them in their complaint and lots of options available to users they don't have to use ours just in my remaining time to get to the allegation that there's an anti competitive purpose behind this i think that  the allegations of the complaint really disprove that one is they've alleged that our programs existed simultaneously sometimes on the same computers sometimes users would have our program and their program if that's the case and we've then made this decision to flag their their content as a pup that presents users with a decision either to restore theirs or to they could decide not to use ours at all we're not gaining any market share from them and importantly they've also alleged that we haven't blocked any of the many other security software companies out there filtering companies if purely an intellectual property statute there is a trademark component for trademark infringement or false association with a known mark that's really the ip component of the statute and i keep claims are excluded from immunity a section alleged is really false advertising federal false advertising and unfair competition claim that isn't based on misuse or infringement of their marks it's an allegation that we've defamed their intellectual property laws and the section of the line of the act which we have filed claims under is a remedy for intellectual property law problems and claims it's not dependent on whether it's a trademark or a copyright issue and nothing about the distinction by the supreme court that has been referred to this morning changes the analysis at two thirty was purposely written to not limit what's available under the lanham act our claims are under the trademark act of one thousand nine hundred forty six clearly an intellectual problem what is the actual harm what is the actual trademark harm well the harm is several fold number one that's unfair practices in their commercial advertising and in part the effect of their disparaging our product recall these are a group of people who hold themselves out as at  what is good and bad software and who often are speaking to novice users so the information from our bites comes with expertise and strength in the marketplace behind it which is another reason why it's not as simple users can simply not use in our bytes and go use and make this product because in point of fact malware bytes is already calling us a threat we're not a threat we're an anti malware product where the opposite of a threat yet they exactly i'm trying to pinpoint exactly what is the trademark harm that you are certain that the harm is that they are engaged in unfair false misleading commercial statements and any law or pertaining to intellectual property law but it also can't make anything that fits under two thirty you can wedge now into a lanham act or an intellectual property claim i mean it to me you're trying to take what you can't do here and shoehorn it in over here they're trying to take two thirty and use it as one could immunity for any and every business toward anywhere in legal precedent of the united states including anti competitive and i trust unfair trade practices they say and they say that they can do it and it will be six with no discovery no testing no cross examination i walk in good phase what you restricted or designated and bad phase and subsection b specifically refers to the fact that the protection under subsection b that now or by tries to hide behind is dependent on it's tethered on subsection a and subsection a says you are considering in good faith the material you're designating to block good faith is actually