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Is Ad blocking the next legal battleground?

Guy Burgess | Nov. 27, 2012
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.

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, 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 programme, since 'free' television programmes 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, eg 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 rare).

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.

 

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