from the well,-of-course dept
For way too long now, short sighted publishers have insisted that ad blocking is “stealing.” That’s always been bullshit. Back before we turned off all our 3rd party ads last year, we were perfectly fine with people using ad blockers (and we even let you just turn off ads in your preferences, if you preferred that approach).
But some publishers still don’t get it. One of the worst is the German media giant Axel Springer, who was one of the most vocal proponents of the EU Copyright Directive, and owns tons of publications around the globe, including Politico and Business Insider in the US. As obnoxious as some publishers are regarding the internet, Axel Springer has been worse. Years back, Axel Springer sued the company behind Adblock Plus and lost. The courts found that adblocking is perfectly legal.
Axel Springer decided that can’t be left to stand, and decided to try again with everyone’s favorite tool of control: copyright. In 2019 Springer came up with a bizarrely stupid argument that ad blocking is copyright infringement. The argument was that because the browser extensions change how a website is displayed in your browser, that it “changes the programming code of websites” and that makes it infringing. But that’s nonsense. Adblockers work on content that is already directly in your browser that the company sent in an authorized manner.
It’s the equivalent of saying that taking a highlighter to a book that you own is copyright infringement.
Thankfully, last week a court in Hamburg saw it that way as well and said that adblocking is not infringement. This is important not just for adblocking but for basically any kind of browser extension and for the concept of HTML itself.
From an automated translation of the ruling, the court says that “there is no unauthorized duplication and/or reworking of copyrighted computer programs” under the meaning of copyright law. It further says:
Although the HTML file and other elements are loaded into the user’s main memory when the plaintiff’s pages are called up, the storage takes place with the plaintiff’s consent. Anyone who provides a website agrees that the corresponding programs are called up from the website operator’s servers – and in some cases from third-party servers – and stored in the user’s main memory. The very purpose of offering websites is that they are accessed by users. The intermediate steps that are absolutely necessary for this include the intermediate storage of the files provided by the website operator on the user’s computer. Users who call up the pages of the plaintiff and use the program “AdBlock1 Plus” are also entitled to store the files. If the user calls up the files by calling up the website and the files – as provided by the plaintiff for the case of the website call-up – from the servers of the plaintiff – or third party servers – are stored by the plaintiff.
If the files are transferred, an implied agreement is made that the user may save the files. Since the files themselves remain unchanged, no possible reservation regarding deviations from the intended program flow applies at this point. It is therefore irrelevant whether the permissibility of the unchanged storage of the files also follows from Section 69d (1) UrhG and/or Section 44a UrhG.
The ruling also notes that the HTML files “are not changed by the program “AdBlock Plus.” It merely “has an impact on the data structures generated by the browser.”
More importantly, the court notes that:
It would also represent a disproportionate encroachment on the user’s freedom of action if it were not up to the user to decide whether and how to execute a legally acquired program, as long as the user does not modify the program itself…
This ruling may still be appealed, but as former EU Parliament member Julia Reda notes in response to this ruling:
?This ruling sends an important signal that frivolous lawsuits will not be accepted. The court has correctly concluded that the copyright protection of software does not extend to the outputs of software. Just as copyright law does not entitle a book publisher to forbid readers from underlining sections of a book or writing in the margins, copyright law does not give digital publishers the power to tell users how to display a website,?
But it certainly does tell us just how much big publishers like Axel Springer will seek to abuse copyright law to gain extra control over users…