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Ad blockers altering website code is not a copyright violation, German court rules
Browser filter biz Eyeo defeats Axel Springer – but case against Google poses similar risks
Ad-filtering biz Eyeo on Tuesday celebrated the defeat of a copyright claim that threatened to break the web, though that risk hasn't entirely been put to rest in the US.
Eyeo was sued last year by German publisher Axel Springer for allegedly violating its copyrights by altering its websites with its browser extension AdBlock Plus.
The publisher has tried unsuccessfully for years to have the German court system declare Eyeo's business model illegal. Eyeo offers its ad-blocking browser extension and simultaneously runs a program called Acceptable Ads which displays approved ads to consenting AdBlock Plus users and requires large publishers to pay a fee if they want to participate.
In 2015, CEO Randall Rothenberg, executive chair of the Internet Advertising Bureau and former CEO of the trade group, likened the arrangement to a mafia protection racket.
Though the ad industry chafes at being beholden to gatekeepers who have been deputized to alter web page presentation through extensions installed by browser users, Axel Springer has mostly failed to convince German courts that anything is amiss. The publisher's claim that Eyeo's business violates competition laws was tossed out by Germany's Supreme Court in 2018.
The publisher last year tried to reverse its string of legal losses using copyright law. It claimed that the HTML used to render web pages is protected and thus cannot be altered without the approval of the copyright holder.
Had the German court agreed, it would have thrown the web into turmoil by making client-side code alteration unlawful.
"In practice, most of the modern browser features that the internet ecosystem enjoys today would have become instantly illegal, and copyright sanctions would have become enforceable: all privacy and anti-tracking technologies; all website language translation features; all accessibility utilities for blind and handicapped readers; all ad blockers; and all CSS modifications of any kind," Eyeo explained in a blog post.
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Law professor Eric Goldman, of Santa Clara University in the US, told The Register in a phone interview that the German court decision covers matters that were dealt decades ago by the American legal system when adware was being litigated.
But a recent complaint against Google shows that these issues don't necessarily stay settled. Goldman pointed to a complaint [PDF] filed by Best Carpets Value against Google in 2020. The company objected to the way Google's Search App on Android superimposed its own footer element onto the Best Carpets Value website, after the user had clicked on a search link to visit the site.
The Google footer, if subsequently clicked, would cover the website with an overlay occupying most of the screen real estate with banner ads from the firm's competitors. "Google’s ads intruded on website owners’ limited space and created distractions that undermined every web page’s central purpose," the complaint alleges, claiming that Google earned "over $2 billion of non-consensual free advertising" in the two year period this Search App behavior existed.
To Goldman's consternation, the judge presiding over Best Carpets Value v. Google did not fully grant Google's motion to dismiss the claim. And by allowing the case to proceed – particularly at a time when there's a lot of concern about big tech – there's a possibility Best Carpets Value could prevail, creating problems similar to the Eyeo case though under a different legal theory.
Best Carpets Value contends that Google's interference with the presentation of its website constitutes "trespass to chattels," which refers to the use of property without the owner's permission. That is to say, the company argues that HTML code should be treated as physical property, rather than intellectual property (which is covered under copyright, trademark, and patent law).
"The plaintiffs instead claim that the adware bar constitutes a trespass to chattels," Goldman wrote in a blog post last year analyzing the decision not to dismiss the claim. "However, Google’s adware bar never interacts with the plaintiffs’ physical servers at all. As the court says, 'None of Plaintiffs’ websites, files, or data were physically altered in any way. Nor were Plaintiffs’ servers disrupted.'
"Instead, the adware bar’s display customization takes place solely on the user’s device, supplementing how the code renders on the device. So the 'chattel' at issue here isn’t the website operator’s servers; it’s the HTML code that the website operators send to each user’s device (and gave Google permission to display)."
This case suggests some kind of different way of processing HTML can constitute a trespass to HTML code
If this legal theory were to prevail, it would create all sorts of problems. Treating intangible HTML code as if it were governed by law covering personal property (chattels) would call into question the legal status of anything that altered web page presentation in a way that displeased the site publisher, such as ad blockers, browser updates and deprecations, and anything that resized windows, Goldman argued.
"This case suggests some kind of different way of processing HTML can constitute a trespass to HTML code," Goldman explained over the phone. "That can't be the right outcome given that HTML code does not lead to identical presentations."
Google clearly shares that opinion. It has asked the judge for an interlocutory appeal – the intervention of an appeals court – and a stay to prevent the case from proceeding. A hearing to determine whether Google's request will be granted is scheduled for next month. ®