Axel Springer is fighting the wrong battle at the wrong time • The Register
Opinion Let’s talk law and let’s talk donkey. Or. in the British vernacular, ass. In particular, let’s go back to Charles Dickens, a pungent critic of the law, who had one of his characters in Oliver Twist say of a legal assumption that “If the law supposes that, the law is a ass – a idiot.”
For a prime example of the some of the arguments that tend in the direction, we need look no further than publishing. In particular, the German giant Axel Springer, which has been pursuing a copyright claim through the courts for eleven years. You might assume that copyright exists to protect intellectual property and stop one party from ripping off another’s content. Axel Springer’s legal team proposes that because this protection also includes the right to stop others from modifying its content, blocking ads running in the content is against the law. If the law supposes that, you may think, then the law is indeed an ass, an idiot.
The logic runs thusly. Ad blocking company Adblock has a number of techniques it uses to prevent advertising from appearing on a user’s screen. One in particular detects adverts embedded in a web page and modifies that web page on the fly to remove the elements that make up the advert. Axel Springer contends that because the pages it serves are its copyrighted material, Adblock’s modifications are illegal. This contention has gone up the court chain, and has been found without merit until the last appeal. Now, the final arbiter in the German legal system has overturned that decision, telling the appeals court to look again.
To say that consumers must receive what they are given and not alter it in any way would indeed be asinine in countless ways. Content filtering and transformation is a primary security mechanism against malware, misinformation, and inappropriate content. It is an accessibility essential, cutting down page loading times, excising pop-ups and overlays, and letting the user’s choice of colour, layout, and presentation take precedence. If the law would deny all that, it would indeed be as big an ass as one could imagine.
The legal process doesn’t protect against foolishness in law. Its job is to test propositions against the logic and tests embedded in the legal code, and if that produces an outcome that brays and kicks like a mule, so be it. It’s up to lawmakers to fix that. In general, however, where copyright has been pushed towards a novel interpretation against consumer interests, things have not gone well for the pushers.
This isn’t the first time that copyright has been used to try and stop people from skipping adverts. In 2013, the US Ninth Circuit Court of Appeals said that ad-skipping on recorded television wasn’t against copyright. This continued a long chain of decisions stemming back to 1984, when the Supreme Court found that Sony wasn’t responsible for copyright violations caused when owners of its VCRs pressed the record button.
Thirty years later, the fast-forward button was also exonerated. Consumer decisions to not consume were fair use. This decision directly shaped attitudes to online ad-blockers, which in some ways perform an exact analogy of fast forwarding past unwanted content. While the content industry has continued its arms race with ad blockers, copyright contentions are as obsolete as biplanes. Except, perhaps, in Germany.
The sad thing is, even if Axel Springer wins, ad blocking will continue evolving. Not only has the concept of ad blocking been proven legal around the world, it has evolved into a complex immune system operating on many levels. It has never been more powerful or more widespread. Browsers have ad and tracker management built in, there are a panoply of third party products, plug-ins and proxies to choose from on all platforms, and it even operates at the most basic level of the internet, where there’s a huge choice of blocklist options that either filter unwelcome traffic as it comes in or prevent it from being requested in the first place.
This level of at-source filtering used to be too complex and abstruse for widespread adoption. If you’re comfortable with changing DNS settings and bringing up appliances, then things like PiHole work wonderfully, but they fail the granny test. Subscribing to free blocklist DNS services like Quad9 still requires DNS tinkering, although some routers now come with a curated list of these services that can be selected without risking system-nobbling DNS typos. Others come with optional services like AdGuard Home, which can also run on OpenWRT. Still nothing you’d like your grandparents messing with.
Even your most aged relatives will have heard of VPNs by now, thanks to the sterling work publicizing them by the content industry and governments trying to geo-block and force registration on users. In turn, the VPN providers have cottoned onto ad blocking and low-level filtration as competitive advantages. They’ve also long ago cracked the ease-of-use app-based installation model, so Great Aunt Nadine gets to play too.
In short, nobody likes ad tech except advertisers and the publishers who depend on them for revenue, and there is strong consumer demand to rid ourselves of them. Good luck turning that clock back.
Or here’s a thought: how about responsible, non-intrusive, non-monstrous ad tech? The sort that doesn’t utterly ruin online content, doesn’t present a security threat, and doesn’t power global surveillance capitalism? That might be even better than an 11-year court action against one tiny part of blocker technology in one tiny part of the world. Try turning the clock forwards for a change. Dickens may be fun, but we’re out of Victorian times now, and no, please sir, we don’t want some more. ®
