… because browser-based ad blockers (not sure what the IE tools are, but AdBlock Plus for Firefox is an essential part of any installation I’m going to be using) are coming under more scrutiny — and legal experts are waiting for a law suit any day now.
Tomorrow’s legal fight may be over Web browser add-ons that let people avoid advertisements. These add-ons are growing in functionality and popularity, which has led legal experts surveyed this week by CNET News.com to speculate about when the first lawsuit will be filed.
If ad-blockers become so common that they slice away at publishers’ revenues, “I absolutely would expect to see litigation in this area,” said John Palfrey, executive director of Harvard Law School’s Berkman Center for Internet and Society.
[…]Any lawsuit would likely invoke two arguments–that copyright infringements are taking place (through derivative works), and that the Web site’s terms of service agreement is being violated.
Can they do that? Well, aside from the fact that the courts and legislatures always seem willing to roll over for content providers, publishers, and media moguls, regardless of what customers and users want.
The terms-of-service argument is the most straightforward. If a web page says that using the site requires you to not use ad=blocking software, if you are, they could claim you were violating ToS — though there’s not much they can do aside from booting you from the site. Right?
Many Web sites prohibit any kind of ad-blocking in their terms of service agreements. MySpace.com prohibits “covering or obscuring the banner advertisements on your personal profile page, or any MySpace.com page via HTML/CSS or any other means.” Six Apart’s LiveJournal uses similar language, as do some news organizations including the Chicago Sun-Times and Fox TV’s Houston affiliate. CNET News.com does not.
Which most folks don’t realize because, well, who reads the ToS?
But that just comes down to a (gasp) business model issue, right? I mean, if they don’t like my having ad blocking software, they can detect it (if they can) and keep me off the site. Then I can bad-mouth them and we can enter into a competitive, capitalist tussle as to whether its worth it to the clients involved to drive off visitors (and weaken the value of people advertising there in the first place).
But if the content owners went after the ad blocking software publishers in the first place … how many of them could defend against a law suit? Even if it was groundless? “Hey, we’re suing you because your software manipulates our copyrighted HTML and CSS and etc., and that’s not legal.” It’s not clear the courts would rule in favor of such a claim — any more than they supported the suits against the early Betamax VCRs because they could fast-forward past ads on TV (gasp!) — but, again, would anyone be able to afford to fight it?
And they might not win, in fact.
A more recent hint about legality comes from a 2003 appeals court decision related to a copyright dispute over the file-sharing service Aimster.
In that opinion, 7th Circuit Judge Richard Posner concluded that, based on earlier court rulings, commercial-skipping creates “an unauthorized 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 advertisers.” By “derivative work,” he was referring to a concept from copyright law that says it’s generally unlawful to make a new work out of an existing copyrighted one without permission.
So if someone claimed that you (or ad blocking software makers) were creating unauthorized derivative work (ad-stripped copyrighted web pages), the courts might very well say that’s wrong. Even if it’s just for you, just on your web browser, and by your choice.
Still, even with legal action, it’s not clear that, on the other hand, that ad blocking can be easily stopped.
While statistics for ad-blocking tools are hard to come by, an estimated 2.5 million users worldwide currently run Adblock Plus, and an even greater number have downloaded the utility, Adblock Plus lead developer Wladimir Palant said in an e-mail interview. He estimated the product is attracting 300,000 new users each month after an initial spike in adoption attributed to people switching over from Adblock, a related utility with a development path that has diverged.
Palant said he believes Adblock Plus is in “no way illegal” and suggested that suing companies like his “out of business” won’t do anyone any good. He added that no one to his knowledge makes money, directly or indirectly, off the software.
In addition, because the source code is publicly available, development would likely continue in another nation with different copyright laws. “The software that I am making is open source, even if I stop working on it–each Adblock Plus user has a copy, and any of them could develop it further,” Palant said. “If the advertisers have a problem, they will not be able to solve it in the legal way. As long as people want to block ads, they will be able to do this.”
Yay.
I saw this article via Les, and he notes that he doesn’t use ad blocking software — in fact, that it would be hypocritical since he runs Google ads. I do, too, but I use Ad Blocking software , though I tend to avoid blocking Google ads for just that reason. I usually only explicitly block ads that are too distracting (bright! flashing! lights! and! movement!) or intrusive (big banner ads in the middle of text blocks). I do realize that there’s no such thing as “something for nothing,” and right now ad revenue is the basis for some sites to exist. I also realize that TV ads pay for TV — and I have no hesitation about FFing them, or walking out of the room while they’re running.
That may be inconsistent, or even ethically problematic — but I’d rather engage in a discussion about that to be persuaded otherwise than have a big pockets media conglomerate decide to take the decision out of my hands with a phalanx of lawyers.