The promise that pretty much everything is available for free on the internet was one of the key driving forces behind surging uptake at the end of the century. The reality was more nuanced, of course.
The marketing and framing of this utopian vision relied on the relative naivety of most internet users. None were strangers to adverts appearing on TV, radio or in print, so the concept needed no explaining.
That advertising online wasn’t so passive, and over the next two decades would in some cases become an abusive, privacy-destroying nightmare, certainly wasn’t mentioned up front as part of the deal.
The revelation that adverts could be blocked edged into the mainstream around 15 years ago and developed into an industry in its own right. Easy to install, the AdBlock browser extension grew in popularity along with its rivals, leading to publishers of all kinds questioning their business models and whether ‘free’ even had a future.
Axel Springer Takes on Eyeo GmbH
German publisher Axel Springer, owner of brands including Bild and Die Welt, eventually decided that the ad blocking problem could be solved by its legal department. The company took legal action against Eyeo GmbH, the owner of what had become the multi-platform Adblock Plus, arguing that the software interfered with its business model.
After trips through regional courts and eventually Germany’s Supreme Court, in April 2018 Adblock Plus and Eyeo came out on top, having been found not in breach of competition law. After concluding that the solution to ad blocking must be available somewhere else in the law, Axel Springer filed a new lawsuit on new grounds.
The publisher claimed that AdBlock Plus “changed the programming code of websites thus directly accessing the legally protected offer of publishers.” In layman’s terms, by meddling with the appearance of the publisher’s website in users’ browsers, AdBlock Plus breached Axel Springer’s rights under copyright law. Eyeo dismissed the claim as “almost absurd” and Springer carried on regardless.
In January 2022, the Hamburg Regional Court decided that the publisher wasn’t entitled to an injunction; there was no unauthorized duplication and/or reworking of copyrighted computer programs as defined in copyright law, so neither Eyeo nor its users could be considered infringers.
“No company has the right to prohibit users from setting their own browser settings,” Eyeo declared after yet another win.
Axel Springer’s appeal meant that it would continue arguing to the contrary and at the Hamburg Higher Regional Court in 2023, the publisher lost and then appealed once again.
Federal Court of Justice (BGH) Must Decide
The case is now in the hands of the Federal Court of Justice (BGH). In advance of a hearing, the BGH summarized the matter as follows:
The plaintiff claims – as far as still relevant for the proceedings – that the programming of its websites constitutes computer programs within the meaning of Section 69a Paragraph 1 of the Copyright Act, to which it has exclusive rights of use.
When the web pages are called up by the web browser, the HTML file is transferred to the RAM on the user’s device. To display the HTML file, the web browser interprets its content, creating additional data structures. The plaintiff sees the influence on these data structures by the ad blocker as an unauthorized modification of a computer program within the meaning of Section 69c No. 2 of the Copyright Act. It is suing the defendant for an injunction and damages.
At a hearing last week, the BGH indicated that before making a decision, it would wait for the outcome in another case, one that began before the original Adblock first started to gain traction 15 years ago.
Waiting for Sony
After competition law had failed to produce results, Axel Springer referenced the Sony vs. Datel/Action Replay case after switching to copyright claims several years ago. With a decision in that case a decade and a half in the making, and seemingly headed in the wrong direction for Sony, this may be the last roll of the dice.
As detailed in our report early July, key questions in the Sony matter were previously referred by the BGH to the Court of Justice of the European Union for a preliminary ruling.
The similarities in the cases are striking; while both Adblock Plus and Datel’s Playstation Portable cheat device interfere with the eventual output of Springer’s website and Sony’s games respectively, neither do so by circumvention of technical measures, or by copying any copyrighted material.
What Would a Win Look Like?
Each case offers its own complications but in the case of Adblock Plus, Springer’s arguments seem uncomfortably close to the legality of running a firewall. At the very least, the question of who gets to decide what data is allowed to pass through a network Springer doesn’t own, to a computer it doesn’t own either, seems like an important one.
Yet, if Springer somehow wins and Adblock Plus is compelled to remove its ad servers from Adblock updates, it still won’t be able to prevent users from carrying out an easy DIY fix. And since its enforcement powers inside people’s homes borders on nil, in practical terms that’s just another loss to add to the list.
Worse still, a win would likely serve as motivation to ensure that alternative ad blocking lists, for all kinds of systems, are not just kept up to date, but that Springer websites always receive extra special attention.
