Web ad blocking may not be (entirely) legal

Advertising plays an ever-increasing part in promoting competition and
education for consumers. In such an era, web advertising has gained
unprecedented popularity. By web-ad we mean ad forming the part of the web
page itself and so is different from the pop-up ads populating like
electronic billboards on our computer screen when we visit some websites.
Internet has spread immensely and is no longer an exclusive domain of the
computer experts. Becoming aware of the importance of reaching Internet
consumers, the advertisers now use it as an extensive mode of advertising
their products. As web resources have become increasingly significant for
ideas and goods, publishers are investing a lot in such resources and they
constantly look for ways to safeguard their investment in web pages.

What we see these days is an appreciable portion of the web page being
covered by ads. Such web-ads can be quite frustrating for Internet users
because of many reasons including simply crowding the computer screens,
making the download slower, diversion of concentration, difficulty in
finding the stuff that we are looking for etc etc. But we have to
recognize the fact that such advertising is necessary for many Internet
companies to survive and to continue providing free information to
consumers.

Web users being flooded with Internet advertising have found innovative
ways to ignore or bypass it. Now we have ad blockers, which help us to
avoid or block ads, if we don’t want to view those ads. What these
ad-blockers do is to configure web sites not to display ads. Of course, we
are free not to view that we don’t want to, but the contentious and
troublesome issue is a third party providing software to block these ads.
Well, is this (entirely) legal? Is this illegal? Should it be? This brings
intellectual property issues into play. Intellectual property being
involved, this also brings proprietary interest of the corporations to the
forefront. It is sort of modifying publisher’s web page. By eliminating
ads from the web page, such a software does change the overall appearance
of the website. The application of such software does modify and interfere
with the look of the publisher’s websites, which may not be (entirely)
legal. Such ad-blockers are altering or modifying or causing others to
alter or modify publisher’s web sites, including its appearance (as ads
are no longer visible). Additions or deletions on a copyrighted work
tantamount to producing a derivative work, and that too an unauthorized
one. Publishers assert (may be rightly) that this infringes their
exclusive rights to prepare derivative works. Such alternations, made
possible through the use of ad-blocking software, deprive the publisher of
the exclusive right to control the context and manner in which their
copyrighted work is presented. Such modification of someone’s website may
be analogized with adding or deleting an artwork to someone’s copyrighted
work, which is for sure a copyright infringement.

Publishers want their websites to be viewed by users as intended by them,
unmodified and unaltered. But ad-blockers give the user capability to not
make that happen (by deleting ads, which publisher really want you to see,
as they generate money through this). If this were to be held as copyright
infringement, it would hold developers of such ad-blocker computer
software programs liable for such an infringement and computer/Internet
users could be exposed to liability for contributory copyright
infringement. But it is bit hard to visualize that website publishers
retaining full control over what an Internet user decide to view on his
computer screen.

It appears like a contest between consumers who wants to view ad free web
pages and corporations’ interest that wants to make money from the web
ads. But we have to bear in mind that many Internet websites are supported
by advertising revenue and blocking such ads may result in lost revenue
for such websites. If the ad-supported website publishers cannot
fruitfully sell advertising, they may not be able to provide the free
services to the public. On the other hand, website publishers should
realize that they have little control over viewer’s computer screens. It
is not that clear that courts will go which way as great balancing of
interests is involved. But it appears that it is more or less an
infringement of the publisher’s copyright over their web pages and because
of intellectual property issues that comes into play, such web-ad blocking
may not be (entirely) legal, though it seems hard to put it as something
illegal.

One Comment
  1. Section 3(1) of the Copyright Act gives the copyright owner “the sole right to produce or reproduce the work or any substantial part thereof in any material form.” As you discussed, an argument could be made that accessing the website without the ads amounts to producing a derivative of the original work without the owner’s permission, since the user is now using the site through an interface modified from that intended by the creator. I wonder, however, if the ads form a part of a copyrightable work in the first place. Assuming that the website is an original expression of the creator, do the ads form a part of this expression, given that they are readily distinguishable from the website in their content and purpose, and that they are usually not a permanent part of the website (and hence falling short of the fixation requirement required of copyrightable works)? Could we argue, in support of finding a copyrightable work, that the website was a compilation of different materials (one of them being the ads), and hence the users or the ad blocking software providers were infringing on the owner’s rights by changing the selection and arrangement of the compilation?

    I agree with you that determining illegality in the case of web-ad blocking would be a difficult decision for the courts, in light of the multitude of rights and interests involved and the absence of a direction from precedents and legislation as a springboard for the court’s reasoning.

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