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There\u2019s little doubt that online businesses reliant on advertising revenue are negatively affected by increasing use of ad blocking solutions.<\/p>\nThere\u2019s little doubt that online businesses reliant on advertising revenue are negatively affected by increasing use of ad blocking solutions.<\/p>\n
Yet it\u2019s thanks to abusive and invasive ads, and threats to privacy due to incessant online tracking, that ad blockers became so popular. <\/p>\n
There\u2019s a good argument today that an effective ad blocking solution is not just a way to keep out an avalanche of mostly unwanted advertising. In many cases ad blockers are seen as an essential tool in the internet user\u2019s security toolbox and as a result, people are reluctant to turn them off.<\/p>\n
For German publisher Axel Springer, ad blocking solutions are mechanisms that fundamentally undermine the company\u2019s ability to generate revenue. Hoping to force change, over a decade ago the company took legal action against Eyeo GmbH, the company behind Adblock Plus<\/a>, arguing that the software interfered with its business model. In April 2018, Adblock Plus and Eyeo came out on top, when Germany\u2019s Supreme Court found no breach of competition law. <\/p>\n Still determined to take ad blocking out of the game, Springer changed tack. In a new lawsuit, the publisher alleged that AdBlock Plus removes ads by interfering with the \u201cprogramming code of websites\u201d which violates its exclusive rights under copyright law. <\/p>\n Eyeo dismissed the claim as \u201calmost absurd\u201d and in January 2022 the Hamburg Regional Court denied Springer\u2019s request for an injunction, ruling that there was no unauthorized copying or reworking of copyrighted computer programs as defined under local law. <\/p>\n Springer appealed and in 2023 lost again<\/a>, this time at the Higher Regional Court of Hamburg. Refusing to accept defeat, the publisher filed yet another appeal at the Federal Court of Justice<\/a> (BGH).<\/p>\n While competition law may have been a dead end, copyright law can offer novel opportunities for the determined.<\/p>\n Axel Springer\u2019s argument is built on provisions in German copyright law for the protection of software. According to \u00a7 69a para. 3 UrhG<\/a>, a piece of software (\u2018computer program\u2019) is afforded protection under copyright law if it \u201crepresents an individual work to the extent that it is the result of the author\u2019s own intellectual creation.\u201d <\/p>\n Protection applies to \u201call forms of expression\u201d in the program but does not extend to \u201cideas and principles\u201d underlying its elements. This effectively means that people can\u2019t copy or distribute a piece of software verbatim, but they are free to write their own version of the software as long as there\u2019s no direct copying of the original.<\/p>\n In more general terms, computer programs are treated as literary works under the Copyright Act and as such enjoy the same protection. This means that the author of a computer program (or their employer) holds exclusive rights to reproduce, distribute and make the program publicly available, just as an author of a book would.<\/p>\n Axel Springer argues that the software used to create its online media presence (i.e its website) qualifies for protection as software under \u00a7 69a (1) and (2)<\/a> of the Copyright Act.<\/p>\n<\/p>\n Based on the assumption that its software does indeed qualify for protection under \u00a7 69a, Axel Springer notes that further protection is afforded under \u00a7 69c, with certain exclusive rights granted to the rightsholder. <\/p>\n Under \u00a7 69c, third parties must obtain permission for any of the following acts:<\/p>\n<\/p>\n \u00a7 69c (2) \u201cthe translation, adaptation, arrangement and other modifications of a computer program as well as the reproduction of the results obtained.\u201d<\/em><\/p>\n<\/blockquote>\n Axel Springer\u2019s argument is that when Adblock Plus blocks or manipulates its website code (\u2018computer program\u2019) present in the user\u2019s browser, that amounts to a violation of its exclusive right of modification available under \u00a7 69c (2) and its reproduction right under \u00a7 69c (1).<\/p>\n The above matters and others focused on the technical issues are detailed in the ruling handed down by the Federal Court of Justice (BGH). The ruling (Werbeblocker IV \/ Ad Blocker IV<\/a>) is clearly a setback for Eyeo GmbH; the Higher Regional Court of Hamburg previously ruled in favor of the Cologne-based company, a decision the BGH has just overturned.<\/p>\n In a nutshell, the BGH states that the Hamburg court arrived at its decision without first establishing important fundamentals. These details may support the decision of the Hamburg court or undermine it, but that can only be determined once the facts are established.<\/p>\n \u201cWhen examining whether an infringement of a copyrighted right to a protected object (here: a computer program within the meaning of Section 69a (1) of the Copyright Act) has occurred, it is not always necessary to determine whether this protected object meets the requirements of a copyrighted work, computer program, or related right. Rather, this circumstance can be assumed, provided that there is no unlawful infringement of copyright,\u201d the decision reads.<\/em><\/p>\n \u201cIt should be noted, however, that the question of an infringement of a property right may depend on a clear definition of the protected object and its features justifying protection. Denying an infringement of a copyright-protected right while simultaneously assuming that the protected object in question is eligible for copyright protection is therefore only possible in such a case if the object itself deemed to be protected by copyright and the features justifying its protection are clearly defined.\u201d<\/p>\n<\/blockquote>\n Lubberger Lehment, the law firm acting for Axel Springer, highlights a technical aspect mentioned in the BGH decision which it believes warrants much closer attention. <\/p>\n \u201cIn particular, the Higher Regional Court did not sufficiently consider Axel Springer\u2019s argument that a browser is a virtual machine controlled by a website program as byte code. In its reasoning, the Federal Supreme Court quotes in unusual detail what we presented with the help of external experts,\u201d their statement reads.<\/p>\n The decision notes that this is not just about \u201cchanging variable data in the memory of a computer, but rather changing code created by the bytecode of the website \u2018computer program\u2019 as a form of expression of the website programming itself.\u201d<\/p>\n For those interested in the technical argument, full details are available in the decision (pdf<\/a>, German)<\/em>. Which elements will make or break the case, if any, is still unclear.<\/p>\n The scale of the fallout from an Axel Springer win could be significant and given the background, hard to balance in the bigger picture. Switching to copyright law purely because competition law proved insufficient, suggests that copyright may have been viewed as a means to an end. Whether wider disruption will find balance in the benefits claimed by the plaintiffs is another question.<\/p>\n Lubberger Lehment state that the case isn\u2019t just about protecting the integrity of online media.<\/p>\n \u201cIt is about the question of whether at all and in what quality online journalism can be offered and used in the future \u2013 it is about freedom of information without paywalls. This is fundamental to democracy,\u201d the company writes.<\/p>\n Whether the developer community will come to view the following in a positive light remains to be seen.<\/p>\n \u201c[T]he case is of fundamental importance for the entire software industry. This is because all browser applications work with the same technical components, namely HTML5, CSS, PHP, and Java Script. This affects all cloud-based applications such as computer games, standard software, SAP, etc. The ad blocker trial will determine whether this future technology is protected by copyright or can be manipulated at will by third parties.\u201d<\/em><\/p>\n From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\nTreatment of Software Under German Copyright Law<\/h2>\n
Springer Argues Websites Are Computer Programs<\/h2>\n
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Federal Court of Justice Overturns Decision of Lower Court<\/h2>\n
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Technical Matters<\/h2>\n
Outcome Could Have Far-Reaching Implications<\/h2>\n