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Kaushik Moitra

Associate Advocate, TMT Law Practice, New Delhi.

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ad block software

Kaushik Moitra
BRIEF BACKGROUND:

The judgment of the Hamburg District Court in Germany in the case of
Eyeo GmbH, a Germany based start-up firm that developed the software
“Adblock Plus”, which has garnered increasing popularity over the years
for blocking several advertisements on websites that internet users find
intrusive and annoying, created quite the stir in the internet media.
Adblock Plus is an open-source content-filtering and advertisement
blocking extension developed by Eyeo GmbH. Adblock Plus, without the
license from the host website, inadvertently blocks certain contents of the
website thus making unpermitted changes in website and also denying
the right of the owner of the copyrighted website to produce derivative
works/adaptations of his original work. There are many other similar
content-filtering software namely Privoxy, AdFender among many others.
The features of these ad-blocking software are mostly similar and the
examining the legality of these software involves the same questions.
However for the purpose of this article we shall refer to AdBlock Plus
being the most known content blocking software.
This is not content-filtering software’s first tryst with controversy. Before
this German case came into the forefront earlier this year, sometime in
2007 the “ad block conflict” found its roots in this American website
www.jacklewis.net where the owner deliberately blocked access of his
website to Firefox users who had installed advertisement blocking
software in their computers, which ensued the creation of the website,
“www.whyisfirefoxblocked.com” where the reasons for doing the same
was cited by the owner.

This practice of blocking or avoiding advertisements by viewers is not a
new phenomenon, and it is in prevalence since entertainment started
reaching people’s homes through television. This activity of people
consciously opting to avoid television advertisements is christened as
“Commercial Skipping”.
LEGALITY OF COMMERCIAL SKIPPING:
While India has still not seen any cases as far as commercial skipping is
concerned, the courts in the United States have been quite the
playground for advertisers and people involved in the business of
developing technologies which give the viewers the power to avoid
advertisements. The first such case which happened in the US is the case
of Sony v. Universal Studios Inc2
. In this case, Sony came up with the
technology known as Video Cassette Recorder (VCR). This VCR provided
an option to the users to record the television program and skip the ads
during playback. Television and movie studios attempted to argue that
Sony should be held contributory liable for copyright infringement for
manufacturing video cassette recorders, which, by virtue of enabling
users to make video cassette recordings of television
programs, would also enable them to skip over the commercials during
playback. The Supreme Court, however, rejected this argument, holding
that Sony could not be held contributory liable
for a function of the VCR that was secondary to its legitimate, noninfringing
purpose-the ability to engage in time-shifting and record a
television program for the purpose of watching it at a later date.
While this case belonged to the era VCR, with the advancement of
technology the same problem arose even in the digital era. This time the
technology in question was the Digital Video Recorder (DVR) and the two

2
464 U.S. 417 (1984)
companies which faced the wrath of advertisers were TiVo Inc. and
ReplayTV Inc3
.
ReplayTV had plans to include in its DVR, a feature called Commercial
Advance, which would allow viewers to automatically skip commercials. It
was this feature that was the basis of a lawsuit against ReplayTV, brought
by media companies seeking to challenge the legality of commercialskipping.
It should be noted that the notable feature of ReplayTV’s
Commercial Advance technology was that it caused the DVR to
automatically delete commercials during recording, so that during
playback, a viewer would not see any advertisements at all during a
commercial break.
The Court in Sony conceded that users may choose to fast forward
through commercials during playback, and that making such a choice was
not unlawful in that it did not alter or violate the copyright of the program
as it was being broadcast. The basis of the argument against ReplayTV
relied on an assumption made by the Sony Court: that systematically
fast-forwarding through commercials was ‘too tedious’ an activity to truly
pose a threat.” Here, the plaintiffs argued that the Commercial Advance
feature made commercial skipping exponentially easier and therefore
should be regarded as an infringing activity. They further argued that
ReplayTV’s features attack the fundamental economic underpinnings of
free television and basic non-broadcast services. Advertisers will not pay
to have their advertisements placed within television programming
delivered to viewers when the advertisements will be invisible to those
viewers.
Although ReplayTV, Inc. case was ultimately settled out of court, the
result of the intended litigation was that ReplayTV agreed to abandon its
Commercial Advance feature. Though Tivo developed a product that had
many of the same features offered by ReplayTV, Tivo escaped formal

3
Paramount Pictures Corp. v. ReplayTV, Inc., No. CV 01-9358FMC(EX), 2002 WL 32151632 (C.D. Cal. May 30,
2002)
litigation by offering to work with advertisers to study the ways in which
its users utilized the commercial-skipping features included in the DVR.
An analysis of these cases makes one thing very clear, advertisers do not
have an issue when viewers of their own volition skip ads, and in any case
all of us do it at our homes all the time. Many of us consciously plan our
activities, when our favourite show is on air, to do them during the ad
breaks. So where exactly does the problem lie for the advertisers? The
problem for the advertisers lies in the availability of such a technology at
the disposal of the viewers which enable them to completely cut off the
advertisements from their viewing experience.
COPYRIGHT INFRINGEMENT OF A WEBSITE:
With the internet now becoming the major source of entertainment and
information for the people at large, advertisers are bound to flock to the
internet to advertise their product and services. The problem in the
cyberspace starts with availability of technology which completely
eliminates advertisements from their web browsing experience. The
availability of ad-blocking software which gives the internet users the
necessary tool to avoid advertisements in-toto is often seen as an
infringement of the copyright of the webmaster.
This was the basis for cases which recently happened in Germany against
Eyeo, along with having some claim under the German Competition Law
as well.
The German case brings light to the issue the importance of Commercial
Skipping in the internet age and this makes for an interesting debate as
to how would commercial skipping would be treated under the Indian
Copyright Act, 1957.
But before delving into the Indian system let us first have a look at how
the commercial skipping is looked at in the copyright regime of US as well
as few European countries. The number of consumers using ad blocking
software worldwide has increased 41% year-on-year to 198 million
monthly active users, according to a report published Monday by PageFair
and Adobe.4
U.S. POSITION:
The current argument against commercial-skipping is based on a theory
of copyright infringement. In WGN Continental Broadcasting Co. v. United
Video, Inc.5
, the court provided the basis for commercial-skipping as a
violation of copyright:
“A copyright licensee who ‘makes an unauthorized use of the
underlying work by publishing it in a truncated version’ is an infringerany
‘unauthorized editing of the underlying work, if proven, would
constitute an infringement of the copyright in that work similar to any
other use of a work that exceeded the license granted by the
proprietor of the copyright.”6
The Seventh Circuit further refined its understanding of the (il)legality of
commercial-skipping in In re Aimster Copyright Litigation7
:
“commercial-skipping amounted to creating 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.”
8
Building upon past jurisprudence of the Courts, the plaintiff needs only to
prove the following elements for copyright infringement:
(1) that the Plaintiff owned the copyrighted material; and

4
“The Cost of Ad Blocking”, Ad Blocking Report by PageFair and Adobe; available at
https://blog.pagefair.com/2015/ad-blocking-report/
5
693 F.2d 622 (7th Cir. 1982)
6
Id. at 625
7
334 F.3d 643 (7th Cir. 2003)
8
Id. at 647-48
(2) that the Defendant infringed on at least one of the exclusive
rights of the copyright owner. 9
Here, the websites affected by AdBlock Plus would allege the individual
user is creating an unauthorized derivative when he uses an ad blocking
software to remove advertisements from the layout of the website. To
prove contributory copyright infringement, a plaintiff would have to
further prove the defendant’s (AdBlock Plus’) behaviour satisfies the
following three elements: participation in the infringement, intent to
induce to infringe, and production of the means of infringement.
Satisfying these elements would not be difficult; satisfying the first
element would only require the plaintiffs to identify a direct infringer who
used AdBlock Plus to block ads from appearing on the Web site. Finding
an individual who accessed the Web site in question while using AdBlock
Plus should not be overly hard, given the number of people who have
reportedly downloaded and installed AdBlock Plus. Next, the plaintiff must
show that the manufacturers of AdBlock Plus had knowledge that its
product was being used to infringe upon another’s copyright. If Adblock
Plus had a significant non-infringing use, a plaintiff would need to show
that not only did Adblock Plus have constructive knowledge that its users
were using the product for an infringing purpose, but that it induced
individuals to use its product to infringe. However, because the sole
purpose of Adblock Plus is to block advertisements from websites, thereby
creating an unauthorized derivative, the Court in Grokster10 intimated
that a showing of inducement may not be necessary, and proof of
constructive knowledge would be sufficient. Given the popularity of
Adblock Plus-it was included in PC World’s 100 Best Products of 2007 listit
is likely that the creator is aware that there are people who are using
the program to block advertisements.

9
Perry v. Sonic Graphic Sys., Inc., 94 F. Supp. 2d 616, 618 (E.D. Pa. 2000)
10 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913
Lastly, a plaintiff alleging contributory infringement would need to show
that AdBlock Plus provided the means to infringe by making its software
available to users. Plaintiffs may encounter some
difficulty in asserting that the creator of Adblock Plus has provided users
with the means to use the product, because though the plugin is available
for free, it is only available for download via the web browsers. Courts
may have difficulty concluding that Adblock Plus provided the means for
infringement when the product is only available through another’s Web
site. On the other hand, however, a court may analogize these facts to
the circumstances of A&M Records, Inc. v. Napster11
, wherein the court
found Napster materially contributed to copyright infringement of music
MP3s by providing support services, without which “Napster users could
not find and download the music they want with the ease of which
defendant boasts.” Without holding Mozilla liable, a court may determine
that by developing the plugin and making it available for download
through Mozilla, AdBlock Plus met the requirement for providing the
means for infringement. Although the case for contributory copyright
infringement presents its own stumbling blocks for a website wishing to
allege infringement, there are other elements of a basic copyright claim
that a Web site may find hard to satisfy as well. An inability to satisfy
these initials elements may mean that a Web site is never
able to advance its case to the next step of proving contributory
copyright infringement.
First, as mentioned above, before a website would be able to pursue an
action for contributory liability, the Web site would first have to show that
copyright infringement occurred. To succeed, the website owner would
need to first show that the website was copyrighted. This seems an
obvious first step, but depending on the type of Web site seeking to
initiate a claim, this may be a significant stumbling block. It is noteworthy
that the U.S. Copyright Office has specific criteria for the types of

11 239 F.3d 1004, 1020 (9th Cir. 2001)
websites to which it will grant a copyright. Websites that are not static,
but are not updated frequently either, may find copyright protection
elusive as regulations require each site revision or update to be filed as a
new registration.
However, assuming that the website is able to obtain a copyright, the
next hurdle would be to show that any advertisements (or space reserved
for advertisements) included in the website ought to be covered by the
copyright. There are several obstacles to proving this element. The U.S.
Copyright Office clearly distinguishes between a computer code that is
used to format the text and design of a website and the content
generated by that code. The code can be copyrighted, while the content
cannot. So the implications for this limitation are that websites may not
be able to successfully argue that the space set aside for advertisements
is copyrightable. Though the criteria needed to portray AdBlock Plus as a
contributory copyright infringer appears to be straightforward, or even
simple, the difficulties in proving the Web site has the appropriate
standing to make such a claim may prove to be an insurmountable
hurdle.
GERMAN/EUROPEAN POSITION:
The German Court ruled in favour of the software firm Eyeo GmbH,
defendants therein, stating that it did not violate any competition or
copyright laws, and rejected the arguments that were bought forth by the
plaintiff publishers. Similar suits were filed against the defendants in two
respective courts – Munich and Cologne, which engendered the same
result, where the Courts upheld the contention of privacy of the internet
users and their liberty to freely browse through the internet without
interferences.
This judgment has set a certain bar in Germany, and also in Europe
where users have applauded the decision of the courts.
INDIAN POSITION:
In India, the position is a little different. The websites in general are not
granted any protection but once the originality criterion is satisfied it is
granted protection as a “literary work”. Websites are granted protection
according to the content which they host on their website, hence, for each
of the content they have to file separate copyright application. It can
further be said that the advertisements make a part of the website and
are presented in the form decided by Registrant of the website to the
user. Any alteration, derivation or modification in the website by blocking
the advertisements may be deemed as an infringement of the product of
the website owner/registrant rights over its website. Thus commercial
skipping may tantamount to infringement in India. The Plaintiff will have
to establish the contribution of AdBlock Plus in the infringement as the
primary infringer shall be the user who willingly used the features of the
AdBlock Plus as under other jurisdictions.
CONCLUSION
However there being a lack in judicial precedents in India about
commercial skipping it would be wrong to make pre-mature assumption
about the interpretation by Indian judiciary of the provisions of laws.
Nevertheless, considering international concepts it would not be wrong to
judge in the favour of the AdBlock Plus for the sake of liberty of browsing
through the internet freely.


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