September 14, 2007 4:00 AM PDT
Web ad blocking may not be (entirely) legal
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Who blocks the (ad) blockers?
September 11, 2007
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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.
The second argument claims that a Web site's terms of service are a "browsewrap" or "clickwrap" agreement that are legally binding. To apply, the notice must be "conspicuous enough to the visitor, so they they're aware that their visit is governed by these terms," said Cydney Tune, a lawyer who heads copyright practice at law firm Pillsbury Winthrop Shaw Pittman in San Francisco. (A "clickwrap" license that requires a visitor's agreement to proceed is more likely to be enforceable, however.)
Still, just because a Web site's terms of service prohibits ad-blocking doesn't mean that lawsuits will necessarily ensue. "This is a conversation that comes up a lot," said Anil Dash, chief evangelist for SixApart, which owns LiveJournal. "We're not going to chase (them) down. If a kid wants to install a browser and a plug-in on a browser to control their experience, we're not going to fight them doing that."
"The truth of it is, very, very few people run ad-blocking software," Dash said. "Some of them are very vocal about it, but we do respect that."
A Fox Interactive Media representative declined to comment about MySpace.com's terms of service.
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."
(Publisher's disclosure: CNET Networks, publisher of News.com, is one of hundreds of members of the Interactive Advertising Bureau, which was mentioned in this article.)
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