Adblocking: a new legal battleground?

"It would be draconian, as well as practically impossible, to attempt to prevent users from carrying out their own ad-blocking." Guy Burgess examines possible the legal challenges to ad-blocking software.

Image: CC BY 2.0 atomicjeep

Guy Burgess is a New Zealand lawyer.

Consider these two facts:

Fact 1: many of the world’s largest internet companies, including Google and Facebook, derive most of their revenue from serving up online advertisements.

Fact 2: one of the most popular browser add-ons is Adblock Plus, free software designed to eliminate online advertising from a user’s browser, with the Firefox version alone recording close to one million downloads per week.

You don’t need to be a financial guru to see the potential problem here. Could browser ad blocking one day become so prevalent that it jeopardises potentially billions of dollars of online ad revenue, and the primary business models of many online and new media businesses? If so, it will inevitably face legal attack.

The concept of browser ad blocking software is simple: when a user opens a web page, the software detects any advertisements included in the page and automatically removes them while leaving the rest of the page intact. The user gets to view just the content they wanted (for example, the article or page of search results) without being bothered by banner ads, sponsored links or other advertising. Other claimed benefits include faster loading pages, reduced bandwidth, and reduced tracking of surfing habits. There is little if any downside for the user, but a big potential downside for the website and its advertisers whose paid ads are silently zapped before being seen – and perhaps clicked on – by the user.

Currently, advertising-supported sites seem unperturbed. Google itself – the world’s largest online advertising provider – offers Chrome-versions of Adblock directly from its official Chrome Web Store (somewhat incongruously boasting that it can even block video ads from Google’s own YouTube site). And there seems little cause for concern at present: online advertising is thriving, which suggests that ad blocking is not, statistically, too widespread.

Overall statistics on browser ad blocking are hard to come by, but Mozilla records over 178 million total downloads of Adblock Plus and over 14 million average daily users for its Firefox browser alone. Even when extrapolated over all browsers, this still only represents a small percentage of web traffic. Whether this will grow significantly remains to be seen. There are also technical ways in which websites try to defeat ad-blockers, but this is somewhat of a cat-and-mouse game between developers, with dynamically-updated filter lists and other techniques giving ad-blockers the upper hand. What legal steps might be taken if browser ad blocking does reach a point where it is seen as a threat to bottom lines and business models?

The legal position

There does not appear to have been any court case to date involving browser ad blocking. This may be an indicator of the lack of concern or loss, or of the difficulty of such a legal challenge, however there have been some US legal battles involving other forms of ad blocking/skipping that help set the scene for future legal fights.

An early example arose in the famous US “Betamax case” proceedings of the late 1970s and early 1980s in which studios challenged the legality (under copyright law) of home video recorders. The studios claimed, in part, that “the commercial attractiveness of television broadcasts would be diminished because Betamax owners would use the pause button or fast-forward control to avoid viewing advertisements”. The Court rejected that claim because, it said, the viewer must still receive and record the commercials and then “must fast-forward and, for the most part, guess as to when the commercial has passed”, a process which the Court said “may be too tedious”.

Fast-forward to 2002, when several US networks sued the maker of the ReplayTV DVR in part due to its commercial-skipping features, alleging that such technology “attacks the fundamental economic underpinnings of free television”. The case effectively ended after ReplayTV went into bankruptcy a short while later, so no legal precedent was set.

In a 2003 case involving file-sharing service Aimster, prominent judge Richard Posner wrote that, based on earlier cases, commercial-skipping “amounted to creating an unauthorised derivative work … namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since ‘free’ television programs are financed by the purchase of commercials by advertising”. However, commercial-skipping was not the focus of that case.

The issue was revived earlier this year, with CBS, Fox and NBC suing Dish Network over its commercial-skipping technology, saying they were doing so “in order to aggressively defend the future of free, over-the-air television”. The legal basis of (part of) the claim is, in essence, that commercial-skipping infringes copyright by modifying the broadcast stream presented to end users.

It is not a particularly big leap to apply those arguments to browser ad blocking.

Could a legal attack be launched on browser ad blocking?

Two areas of law that could potentially be used in efforts to attack the legality of browser ad-blocking are:

1. Copyright law: it could be claimed that ad blocking constitutes copyright infringement, by causing unauthorised modification to a web page (which in many cases will be protected by copyright) – that is, it creates an unauthorised adaptation of the page. As mentioned above, this has been the basis of television commercial-skipping lawsuits, and has received supportive comment from US courts.

2. Trade practices / commercial laws: it could be claimed that the use of third party software to remove paid advertising constitutes interference with contractual relations, e.g. an advertiser and a website have entered into a contract whereby the site will display an advertisement in return for a fee or commission, but this arrangement is being intentionally stymied by ad blocking software. Alternatively, it could be claimed that ad blocking software induces the breach of website terms and conditions that prohibit ad-blocking (if such a term is present, which currently is relatively uncommon).

Both of these scenarios have significant legal and practical challenges in the context of browser ad blocking, but are not inconceivable if the targets are the identifiable distributors of the ad blocking software or the maintainers who update “filter lists” that the blockers commonly rely on, as opposed to targeting end users. Likewise, if a browser distribution started to bundle and enable ad-blocking features by default, it could become a target for legal action.

Another possibility is specific regulation, where a law is passed that specifically bans the use or distribution of ad blocking software. Similar precedent is found in laws banning the sale of digital rights management “circumvention devices”. For example, New Zealand’s copyright law bans the sale or distribution of such devices in certain circumstances but notably does not ban the private use of DRM circumvention devices. This partly reflects policy decisions about intellectual property and user rights, but also acknowledges the practical difficulty of banning private use of such devices. It would be draconian, as well as practically impossible, to attempt to prevent users from carrying out their own ad-blocking. Attempts to prevent the creation or distribution of “filter lists” also raises significant freedom of speech issues.

As with file sharing, the billions of dollars potentially at stake will likely prove fertile ground for legal challenges and legislative responses.

You can read more articles by Guy Burgess at www.burgess.co.nz

Share this article

google plusdeliciousdiggfacebookgooglelinkedinstumbleupontwitteremail

Comments

Comments (2)

  1. John:
    Feb 06, 2013 at 04:05 PM

    This is so crazy as it would be much easier to detect when ads have not been served/modifed and pop up a box, saying "You are using an ad blocker, we are ad funded so please turn off to view this content, or subscribe here to go ad free". They could turn this into an opportunity.

    Of course, this as usual in the copyright asylum is not about reality, but control.

  2. Mike Compton:
    Feb 11, 2013 at 07:40 PM

    I'm, sorry but I feel this is a totally ridiculous article. You repeat "could be claimed" under the heading Legal Position when their there really is no argument at all, and the topic is absolutely not a "legal battleground". Inflammatory headings do not help your case.

    One significant difference between TV and internet traffic which you have mentioned but explained, is that the former is a streamed broadcast.

    Therefore, the argument above; that if a stream is altered in some fashion it constitutes copyright infringement is a ridiculous one. If a broadband provider offers a poor service and the UDP steam is not complete from server to users computer - Does that constitute copyright infringement? Should we expect end users to start suing all ISPs? Seriously, that is never going to get to court.


    As for WWW content - ie web pages, they are not streamed and the content delivered to the end point differs from PC to PC, from mobile device to mobile device, from web browser to web browser. The end user's choice of device or Brower dictates what IS and what IS NOT transferred to their device, and how it is rendered. Any how many pages are plain HTML these days? Statistically, the vast vast majority of content delivered is dynamic, changing dependent on what cookies a users has on their device, previous pages viewed, time of day, etc.

    What about the Security appliance conglomerates (Intel or McAfee as they are also known for example), which offer the blocking of certain content? Are they breaking copyright law too?

    If there was IN ANY WAY a threat to ad blocking software using the above argument, they would just change their code, so that all data was transferred to a users machine, and simply not render the advertising.


    I feel it is obvious that advertising will have to change or disappear. If you want to read articles from the Guardian website for example, you would need to subscribe to their site, including the delivery method, forcing you to see content unfettered. For those not willing to pay, they would offer a free but limited content option. Many sites already offer a similar model.

    This negates the need for any lengthy, costly, court battles, which winning would ultimately be fruitless as users would still win by using some other new technique that avoids the law, such as firewalls or other systems which use IP lists to block known advertising.

This thread has been closed from taking new comments.

By Guy Burgess on Feb 06, 2013

Featured Article

Schmidt Happens

Wendy M. Grossman responds to "loopy" statements made by Google Executive Chairman Eric Schmidt in regards to censorship and encryption.

ORGZine: the Digital Rights magazine written for and by Open Rights Group supporters and engaged experts expressing their personal views

People who have written us are: campaigners, inventors, legal professionals , artists, writers, curators and publishers, technology experts, volunteers, think tanks, MPs, journalists and ORG supporters.

ORG Events