The Internet Wins: Adblocking (And Other Extensions) Don't Violate Copyright Law In Germany
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...
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: ad blocking, adblock plus, copyright, extensions, germany, modifications
Companies: axel springer, eyeo
Reader Comments
Subscribe: RSS
View by: Time | Thread
The court has correctly concluded that the copyright protection of software does not extend to the outputs of software.
That might become an important concept also when some game publisher or other decides they don't like people streaming gameplay.
[ link to this | view in chronology ]
Re:
Potentially also if a publisher wants to go after folks who develop certain cheats for video games.
[ link to this | view in chronology ]
I don't think this specific judgment applies to games. Music and graphics in games can be (and probably are) copyrighted elements independently from the overall game, so the output itself is under copyright here. There might still be ways to stream your games legally, but this is not it.
And most cheats do change a game code, which was a point mentioned here:
So, wrong judgment to fix this problem. We'll have to wait for a different case.
[ link to this | view in chronology ]
Re: Re:
Hey Koby just a quick question for y....AND HE'S GONE!!!
[ link to this | view in chronology ]
Usually only bad news come from this Hamburg court, so it was very refreshing to see they got this right. It happens rather seldomly, more often than not this court reeks of a certain Texan district regarding patent law. Point in case: For long time Germany free WiFi was wrecked because as an operator you would be liable for copyright infringement. Then the law was amended and "Störerhaftung" was abolished, but Hamburg court managed to revive it through some loopholes. They hit a grandma who got no computer! https://www.heise.de/news/Freifunk-Stoererhaftung-Gericht-bestaetigt-Urteil-gegen-Raubkopier-Oma-ohn e-PC-6247270.html (Sorry for the cookie terror banner)
[ link to this | view in chronology ]
Re:
I looked up what "Störerhaftung" meant, and it literally translates to "troublemaker's liability".
I'm happy to know my degree in linguistics is good for something!
[ link to this | view in chronology ]
Re:
"They hit a grandma who got no computer!"
The first question I ask of any system like this is how they deal with obvious false positives. If they can't deal with those quickly and easily, then they can't deal with less obvious false positives and edge cases, which makes them essentially useless with a wide scope for punishing innocent people. Which is not acceptable, no matter how much some people demand they are necessary. At some point, individual freedom outweighs the imagined profit to be gained by using the law instead of business logic to deal with a situation.
[ link to this | view in chronology ]
Re: Re:
The court presumed an awful lot in that proceeding. They even said (and the translation was correct) that "she could've used either her husband's computer, or her son's computer...." where the article specifically stated that the complaint filed with the court made no mention of any such 3rd parties. I'll go on to presume that no evidence was entered into the record regarding those two persons, either.
All we really got that's probably true is that her name is on the account that has the "guilty" IP addy assigned to it. So one should wonder why she would have an internet account if she has no computer? There was probably a good, plausible reason for that, but obviously the court "didn't wanna hear it". They just went with "guilt by indirect association", and ticked another checkbox.
[ link to this | view in chronology ]
Re: Re: Re:
"They even said (and the translation was correct) that "she could've used either her husband's computer, or her son's computer...." "
My immediate response would be that if you can't even identify the device used and who used it, how do we know that the suppose infringement even happened at all? It wouldn't be the first time logs have been misinterpreted to accuse an innocent party, and if you're not examining the files actually downloaded, how do you know they were even infringing? File names don't have to accurately reflect the contents, after all. If the charge is serving files illegally, my first request would be that they identify the server used and prove that the files there are infringing.
"So one should wonder why she would have an internet account if she has no computer?"
Mobile phones? Smart TV or IPTV? VoIP? Her telephone provider sold her a package with internet included even though she didn't really need it?
There are of course numerous reasons, but getting to the truth typically isn't a priority when there's copyright related extortion to be done.
[ link to this | view in chronology ]
... which automated translation itself would be, if Axel Springer had its way, illegal.
Likewise:
And that's not counting, for instance, changed made by ad serving companies themselves! You can't stop users from changing the look of the page in their browser without affecting the same rights exercised by the third parties you've let in.
[ link to this | view in chronology ]
Re: third parties you've let in.
So we "must" have UPLOAD filters, but we're not allowed to have DOWNLOAD filters. https://www.techdirt.com/blog/?tag=upload+filters
[ link to this | view in chronology ]
Re: Re: third parties you've let in.
That's actually consistent in a way.
"They" (copyright holders... and a few others) want control and they want "customers" (because that's all we are to them) to have no control.
So, everything the customer does must be validated by them.
And they must be given free rein on everything.
Obviously it's a completely one-sided view of the internet, which is more reminiscent of radio and TV than the multi-way communication channel that is the global network.
These people still don't live in the 21st century. I'm not sure some of them have even caught up to the 20th. (Some newspaper publications for example still try to enforce business models from the paper-based era in the digital market.)
[ link to this | view in chronology ]
Even if ruling were favorable would that have stopped anyone?
What would have happened is that the companies that make ad blocking extensions would have labeled them with a notice that it is illegal to use this software in Germany, which German citizens would have promptly ignored. Even if they had made the software unavailable to download in Germany, we all know how well that works, between VPNs and proxies and people carrying USB drives across borders. Those extensions would have become the "forbidden fruit" that everyone wanted.
When I was a kid, the telephone company used to put a big notice in the front of the phone book (which was always paperback) that said something like "The attachment of any cover not provided by the telephone company to this directory is strictly prohibited!" And then about a week after the directories were mailed out, a different company that sold advertising would send out these lovely plastic protective covers that worked very well for keeping the phone book cover from becoming dog-eared. And so, most everyone who wasn't opposed to advertising on their phone book cover promptly attached these to their phone books. And most telephone repairmen (they were always men back then) had the good sense to turn a blind eye toward them rather than risk a hostile confrontation with a customer, that would most likely just reattach the cover the moment the repairman left the premises. But the telephone company executives probably really believed that people lived in such fear of doing a "prohibited" act that including that notice would stop the third-party phone book cover industry dead in its tracks.
Corporate executives really tend to overestimate the degree to which they can dictate to customers/users what they can and cannot do!
[ link to this | view in chronology ]
3rd party vs 1st
I dont think he thought this through very well.
As there should be no CR protections from a 3rd party, as the data Isnt on the main site.
And most people who use AdBlockers tend to not know they can flip a switch to turn off everything about adverts, but some Sites wont work. Some sites require you to watch adverts to view their site. Which is Wrong.
I dont mind first party advert, because they are Generally simple and basic, and they arnt hiding anything inside the advert.
[ link to this | view in chronology ]
Re: 3rd party vs 1st
1 more point
I dont think there are many of you that were at the advent of TV.
But if it was Cheap the corps wouldnt have Done it, because everyone could have, then.
they got the equipment, the stages, And the Adverts to pay for it all.
[ link to this | view in chronology ]
Re: 3rd party vs 1st
"Some sites require you to watch adverts to view their site"
Yes, they're usually the ones that inspire people to use the back button, instead of the "allow malware" button.
[ link to this | view in chronology ]
Re: Re: 3rd party vs 1st
gasp you open unknown/untrusted sites in the same tab?
[ link to this | view in chronology ]
No big deal either way, but
The previous page might be a search engine page anyway.
[ link to this | view in chronology ]
Re: 3rd party vs 1st
They can 'require' all they want. When I hit such a website, I immediately leave that site. Their content is not that exclusive nor worth that much to me. If I really want to see the general content that site covered, I can always search within a day to read it at some other site that doesn't have those restrictions.
Ad companies never ask if the viewer really wants to see those ads, it's a forbidden question to those that work the industry. Nor do the sites, greedy for income ask if the viewer really wants to see such, take a chance on getting malware, give up their bandwidth to display them, nor wait on the bottle neck of the ad server before they can view the content they sought.
I've reached the point that the internet is so gummed up with ads, I refuse to see them, all of them demanding your attention over what you came to see. If it's a choice of viewing the ads or not seeing the content, I'll walk every time. I'm sick of these ads being shoved down your throat.
[ link to this | view in chronology ]
Re: Re: 3rd party vs 1st
In technical terms, this is known as "the internet routes around damage".
[ link to this | view in chronology ]
Third-party and first-party blur together sometimes
I don't mind first-party advertisements either unless the website moves 3rd-party ad stuff to a first-party domain or until Google decides to turn on Web Bundles... or until Google decides to turn on First-Party Sets.
[ link to this | view in chronology ]
PayWall
And yet somehow it's illegal to circumvent a paywall when the information is in plain text in the HTML or cached by Google.
[ link to this | view in chronology ]
Re: PayWall
And yet somehow it's illegal to circumvent a paywall when the information is in plain text in the HTML or cached by Google.
Even worse, you might be "hacking" the plain-text HTML by reading it with your eyes, https://www.youtube.com/watch?v=ZoWc6WRHKEE
[ link to this | view in chronology ]
Re: PayWall
NO it is not, yet
The one method of clearing all your cookies to circumvent paywalls, since they use cookies to determine how many articles you read, does not break the CFAA.
It MIGHT break theft-of-service laws in some states, but doing that does not currently violate the CFAA
[ link to this | view in chronology ]
by the same logic..
It is now illegal to discard the cupons received in the mail.
If you read the newspaper, it is now illegal for you to not read the advertisements.
[ link to this | view in chronology ]
Speaking of copyright
From across the pond, https://www.abc.net.au/news/2022-01-24/aboriginal-flag-copyright-transferred-to-commonwealth/1007783 24
And some (more) strained Australo-Chinese relations, https://www.abc.net.au/news/2022-01-24/prime-minister-scott-morrison-wechat-account-hacked/100776898
[ link to this | view in chronology ]
Consequences for my own actions, we meet again...
The best part of companies freaking out over adblockers like this is it's an entirely self-inflicted wound, if those pushing and hosting ads had kept them reasonable, unintrusive and not a vector for malware people wouldn't have been so keen to block them all, but since they did none of that others had to step in and respond in kind.
[ link to this | view in chronology ]
However, ad blocking companies outside of Germany are not subject to German law.
When I used to run a specialized VPN aimed at office users, where they could bypass the company firewall and not have to worry about the network being damaged, by block all ads at the firewall level, I was never subject to German laws, because none of my VPN servers were in Germany.
Just like in one of the computer security newsgroups, some clown tried to say that I was violating the Canada Criminal Code with my service, becuase my service was tailored to the "office drone", specifically their equivalent of the CFAA, which is a bit more strict in that area.
They were wrong. None of my servers were ever in Canada, so I was never subject to prosecution in Canada since I had no servers in that country.
[ link to this | view in chronology ]
And copyright maximalism loses this round.
[ link to this | view in chronology ]
Axel Springer may want to look into relocating to Missouri.
The governor there has the same view of how browsers work.
[ link to this | view in chronology ]
Even YouTube shows ads before the main video. It's impossible to avoid all ads, all the time. The court got this right but German publishers are the ones who are pushing bad laws like filter all content, images, text, videos even though there's no way of checking all content is it legal, is it fair use, is it infringing, its impossible to acess a list of a New content images videos music created everyday who owns this who is the composer writer etc most newspapers simply have a pay wall, read a few articles free before you get offered a subscription deal people can use apps or simply use non German websites if the law is overly strict
[ link to this | view in chronology ]
Don't celebrate too early, though. Axel Springer will appeal to the higher Hamburg Court (Oberlandesgericht Hamburg) and meet some of the copyright maximalist judges there who made the Hamburg court notorious for being copyright friendly.
[ link to this | view in chronology ]
It's entirely NOT the equivalent of ...
" ... saying that taking a highlighter to a book that you own is copyright infringement."
Assume the copyright licence INSISTS that the "work" (the webpage including its adverts) must not be modified - and instead must be "shared alike".
If you browser fails to render the 2nd half of a jpeg image - BOOM - the copyright holder has caught you by the wrists.
Hence, a browser's actions (and by extension: a browser extension's action) are much much more like: taking a highlighter to a book that you DO NOT own.
Peace.
[ link to this | view in chronology ]
Re: It's entirely NOT the equivalent of ...
"If you browser fails to render the 2nd half of a jpeg image - BOOM - the copyright holder has caught you by the wrists."
So, you're saying that you think people should be prosecuted for copyright infringement because their network connection dropped in the middle of a download?
I'd say that I'd love you to test this insanity in court because then at least you're not going to be fleecing people with scams that would have a chance of winning. But, unfortunately the lawyers scummy enough to think this is a good idea will still be paid, and I'd rather not have evil profit at the end of the day.
[ link to this | view in chronology ]
Reminds me of previous iterations of this
Such as when the TV broadcasters were up in arms about the ability of a TiVO or other DVR skipping commercials on playback, on the belief that that was somehow violating something -- like the social contract, maybe.
Nevertheless, even today a TiVO doesn't completely skip forward, but forces you to watch blip-verts of the things being fast-forwarded through.
[ link to this | view in chronology ]