What will it take to defeat adblocking in court?

adblock plus court victory
Since last April, publishers have challenged Eyeo, Inc, maker of Adblock Plus six different times in court. They claim that both Eyeo’s “Acceptable Ads” program and adblocking itself are illegal under European law.
After a total of six courtroom decisions, the current score is 0-6 in favor of Eyeo.
Is it time for the publishing industry to give up?
No. But it is time to give up on what’s clearly not working. The primary right of users to control what data enters their machines, and to decide what code is executed there is not likely to be restrained by courts at this point. Nor is Eyeo’s right to selectively filter ads based on pre-defined criteria.
When you’re 0 for 6, it’s probably time to try a different strategy.

Prior legal challenges against Eyeo, Inc / Adblock Plus:

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Arguably, a partial victory was scored against Eyeo in May 2016 when Adblock Plus was forced to whitelist Axel Springer’s ads free of charge.
Other than that, Eyeo has successfully defended against all suits. Publishers have displayed a relatively consistent legal strategy, which is to challenge the Adblock Plus’ “Acceptable Ads” program in various ways under copyright law and under the EU’s unfair competition acts. So far, this hasn’t gone well for publishers.
One exception was the case brought by Süddeutsche Zeitung back in March which made far more sweeping claims: Süddeutsche Zeitung argued that an “unwritten contract” exists between publishers and readers. This contract they claimed, grants readers access to free online content only in exchange for viewing ads. The court ruled in favor of Eyeo, ruling that “no such contract exists“.
In an interview with Ars Technica, Eyeo’s head of communications, Ben Williams commented on the industry’s failed track record of legal attacks:

“Every single case wants to do the same thing. They say we shouldn’t offer a service that allows users to block ads.”

And on the official Adblock Plus blog, Williams wrote last week:

It’s another victory for consumers and ad-blocking providers everywhere: we were informed on Friday by the regional court in Hamburg, Germany that blocking online ads is (still) your legal right.

Except, neither of these statements is entirely true.
The courts have not so much consistently defended users’ right to block ads as they have rejected claims that Eyeo’s Acceptable Ads program runs afoul of Germany’s copyright infringement law and laws against anti-competitive behavior.
dead end

Is this a dead end?

With last week’s Spiegel Online case coming in favor of Eyeo, the legal precedence is certainly stacking up. While the above cases are German national cases, they are all based on European law. And while other European nations must also base their rulings on the same set of European laws, there is always the chance that other European national courts will reach different rulings.
As Paul Henty from UK law firm Charles Russell Speechlys explained to the BBC:

“There could also be different factual or economic circumstances in those jurisdictions which lead to a different result.

“Nonetheless, the Hamburg judgment may be persuasive as an authority and will certainly be a boon to Eyeo in similar AdBlock disputes.”

In other words: Precedence in a different European nation is still precedence. And trying an already failed legal tactic elsewhere while potentially fruitful, is decreasingly likely to work with each successive legal failure.

But maybe we’re just barking up the wrong tree?

As this blog has noted many times, the winning legal solution is probably not going to be found in laws against anti-competitive behavior. But probably will be found in the technical aspects of how Adblock Plus and other current-generation adblockers work.
Adblock Plus and other adblockers no longer simply ‘filter ads’: They use highly advanced, specifically tailored means to circumvent website access control technologies (Access control technologies like BlockAdblock).
This is patently illegal. And it doesn’t matter whether or not said mechanisms of action are written by the community, by third party developers or by Eyeo themselves. The laws on anti-circumvention are clear in both the EU and the US. Circumvention of access control technologies is illegal. Products which use specific measures to circumvent access control technology are illegal. Trafficking in said products is illegal.
Under US law: 

Circumvention of Access Controls
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

Distribution of Circumvention Tools

The Act also prohibits the distribution of tools that enable a user to circumvent access controls or controls that protect a right of the copyright holder.

Under European law: (2001/29/EC)

  1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
  2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
  • (a) are promoted, advertised or marketed for the purpose of circumvention of, or

  • (b) have only a limited commercially significant purpose or use other than to circumvent, or

  • (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.

In other words, it’s not adblocking that’s the issue. It’s evading website access control technology that’s illegal.
Publishers have now tried and failed 6 times to attack Eyeo, Inc. on the basis of adblocking itself,  anti-competitive behavior, abusing a dominant market position and basic copyright infringement.
These (failed) positions read like pages from yesterday’s adblocking playbook. Today, the technological arms race is increasingly sophisticated. Intelligent access control technologies go head-to-head with increasingly sophisticated circumvention technologies.  Newspaper publishers and other websites regularly defend access to their copyrighted content by setting their own terms and conditions. When users don’t abide by those terms (ie: Not using an ad blocker) they are often barred entry. As this contest between adblockers and website access-control technologies ramps up, it’s increasingly clear that laws are being broken.
If the definition of insanity is applying the same failed strategy again and again, perhaps it’s time for the publishing industry and their lawyers to stop being “insane” and demand the application of laws which clearly apply.

18 Replies to “What will it take to defeat adblocking in court?”

  1. Repeat after me. It’s not illegal. Now say it 1000 times. Get that through your stupid skull you morons. I can block ads if I want and it’s never going to be against the law.
    You can update your stupid script as many times as you want and it only takes a few days for the work arounds to come out. You can’t win. Did you ever think about dedicating your lives to something a little less evil?

  2. The problem isn’t the ads themselves. The problem is that content providers and advertisers are going overboard with them in many cases. There are many sites out there where there are so many ads the content is almost cluttered out and it getting difficult to determine what is content and what is advertisement. Other sites will even have other browser sessions open up with just advertisements on them which is completely unnecessary if you are using the advertisements to pay for hosting your content. There are a few sites I’ve gone to that will place an ad right over the content that cannot be closed until you sign up for their newsletter/product announcements/etc. Another problem, and the main reason I would use an ad blocker myself, is that some animated advertisements have been causing a memory leak in the browser plugin that plays them that can actually freeze up my computer (this has happened on both new and old machines) and blocking the ads are the only way for me to use many web pages. Simply telling the browser to stop the script won’t work because the ad will just reload and freeze the system up again (There are quite a few sites I won’t visit because of this).
    Reading through the Adblock plus site I see they claim that they only block ads that don’t fit into their nonintrusive ads criterion. That seems to me to be an acceptable middle ground. Is it too much to ask for content providers and advertisers to format their pages/ads in a way that isn’t going to cause issues with the users?

  3. So you want to use the DMCA and foreign counterparts to enforce your anti-adblock policy. Be careful, as that legal theory swings both ways.
    Malware distributed through ad networks, such as the Stegano exploit kit, also circumvents mechanisms of web browsers that are intended to control access to information in the user account on which the browser is run. And even if gaining access to an end user’s PC with such an exploit kit is not strictly a DMCA violation, it’s still likely a CFAA violation.
    In addition, 1201(i) “Protection of Personally Identifying Information” gives the publisher of an ad blocker a plausible deniability defense if the publisher rebrands it as a “tracking blocker”. I don’t use an ad blocker; I use only the tracking protection in the Mozilla Firefox browser. But WIRED and the INQUIRER admit that they can’t tell a tracking blocker from an ad blocker.

  4. Reading through the Adblock plus site I see they claim that they only block ads that don’t fit into their nonintrusive ads criterion. That seems to me to be an acceptable middle ground. Is it too much to ask for content providers and advertisers to format their pages/ads in a way that isn’t going to cause issues with the users?

    1. Of course it is. What these people really want is for people to be forced to watch dozens of terrible ads, loaded with malware, taking up more than 50% of the screen. Until that happens again, they won’t be happy.

  5. I my self use ads in order to keep my services alive i recently added a analytics filter to see how many of my users used an adblocker and how much money i mis every month go figure if 0% of my users used an adblock i would even have to pay for the website and i would even pull an 10 euro profit from my site so please just do not use adblockers we creators suffer greatly from them while i can understand that you might use a adblocker to not have ads all over the page but only 6% of the commons sites have such invasive ads on their pages

    1. The problem does not lie within the concept of advertising. The problem lies to the very nature of most of today’s ads itself. I have ADHD; When I see flashing lights I really strive to maintain my attention span to what I read. And for me, I don’t have to ruin publisher’s work; They do it before my poor sore eyes for me.

  6. People that don’t have websites and don’t make money from publishing articles doesn’t really know how painful Adblock actually is. I will never stop using block-adblockers and people can go as mad as they want – I just don’t care a bit.
    There are websites out there that they provide good hight quality content, and yet people still block their ads using Adblocking extensions. You know what? Fuck those people, and fuck Adblock extensions. BlockAdblock.com’s script works pretty good and no adblocking extension can pass that and as the days pass, more and more websites are starting to block adblockers, just take a look at wired.com, they block adblockers and for a good reason.
    If a visitor don’t respect the work we do, we don’t respect him ether.
    Keep up the good work blockadblock.com!

        1. The snowflakes want everything in life to be free just like it was at home with mommy. This is just another “entitlement” problem at the end of the day. Free education. Free birth control. Free food. Free healthcare. Free web content. Free housing. Free everything.
          Notice when they have the option of receiving “Acceptable Ads” which are guaranteed to have no malware, they still block 100% of ads.
          They are whiners and they are liars. As always.

        2. Federated subscription networks could help. There used to be one called Adult Check that granted access to thousands of participating publishers’ sites for a single $10/mo subscription. That way a reader doesn’t have to maintain two dozen $4/mo subscriptions, one for each site on which he might read one article in a month.

    1. “no adblocking extension can pass that”. please dont be so naive, im using anti-anti-adblock right now and it works flawlessly, good luck on your never-ending always unsuccessful mission.

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