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:
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.
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)
- 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.
- 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.