Cnet’s News.com published an article last week regarding the legality of Ad Blocking software (via Aviv Eylon). Most of the claims against the Adblock extension in Firefox could be summarised into one statement: blocking ads infringes one’s right in his own website to rule and earn from his publications. Several websites stated in their terms of service that viewing their websites with Adblocking software is not allowed, some redirected all Firefox users since Firefox supports the Adblock extension.

Harlan Yu summarised, already two years ago, the major legal problems regarding Adblock and stated that “Like free television broadcast content supported financially by advertising, much of the content on the Internet today is distributed free to end-users for an indirect exchange of advertisement revenue. When a user loads an ad-driven copyrighted website, he produces a copy of the work due to the inherent architecture of the Internet. If this user is using Adblock to screen out annoying advertisements, he is creating an unauthorized derivative work analogous to skipping television commercials. By the letter of copyright law, this practice would most likely be seen as an infringing use.”

However, i suggest a different approach to Yu’s view. In my humble opinion, Adblocking is the new “deep linking” which was a major controversy during the late 1990s and the early 2000s. Deep Linking was considered as a threat to websites since others linked to internal pages and prevented revenues from displaying ads on the home page. Though the legality of the issue is still a major dispute, no one (today) could say that linking to an internal page harms copyright. Deep linking allowed more revenues to websites as it generated new traffic from other sources and allowed quick direction of users to the specific page.

An innovative approach would be to view Adblock and other extensions (even Greasemonkey, which modifies pages entirely) in the same manner as deep linking is viewed. It does not infringe copyright as it displays selectively portions of the page and blocks others. In the same manner that a website owner has the right to determine what would be the content of the displayed website, the end-user has the right to choose what will be displayed on his computer and what will not.

Law, ex generalis, is to be used only when the market, technology and norms fail (see, for example, Lawrence Lessig‘s opinion). In the case of Deep Linking, technology can block, and can sometimes redirect, deep links into “Ad Endorsed pages”. The Technological solution is preferred over the legal one, as it is easier to apply. Using the same logic, Webmasters and website owners can, and if they seems to believe that it would benefit them, will, use anti-circumvention tools.

The most basic anti-circumvention tool for adblocking is to display a single, not modifiable image for every page. the image will contain an image map to direct clicks on advertisements, and display the text as an image format to prevent (or deter) from copying it to other websites.

However, this solution seems problematic, it goes against the basic logic of the world-wide-web. users prefer textual content not only because they could copy-paste it, but also since they can search it, compare it with other texts or just save it for personal benefits. So, if websites can mandate users to view their site with the advertisements, though their adblocking software is running, they are the ones to be responsible (but not liable) for allowing the ad-circumvention technologies to operate.

If we take, for example, the decision in Snow V. DirecTV, we can understand this in a better manner. Snow operated a website, and in its terms of service stated that no employee of DirecTV may access the website (similar to stating that no adblocking software user may enter the site, right?). The court ruled that DirecTV is allowed to enter Snow’s website:

Through the World Wide Web, individuals can easily and readily access websites hosted throughout the world. Given the Web’s ubiquitous and public nature, it becomes increasingly important in cases concerning electronic communications available through the Web for a plaintiff to demonstrate that those communications are not readily accessible. If by simply clicking a hypertext link, after ignoring an express warning, on an otherwise publicly accessible webpage, one is liable under the SCA, then the floodgates of litigation would open and the merely curious would be prosecuted. We find no intent by Congress to so permit. Thus, the requirement that the electronic communication not be readily accessible by the general public is material and essential to recovery under the SCA. (…)

A webpage is a gathering of Hyperlinks, it involves many elements and one can choose to display only a portion of them, in the same manner that DirecTV was allowed (techologically) to enter Snow’s website. As long as the webpage is Publicly Available, displaying it, even in a distorting manner, must be legal and legit.