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, non-infringing 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 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 commercial-skipping. 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 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
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 infringer-any '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: that the Plaintiff owned the copyrighted material; and 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 list-it is likely that the creator is aware that there are people who are using the program to block advertisements.
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 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.
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.
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.
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.
(Ankit Chaturvedi is an advocate working as an associate with TMT Law Practice, New Delhi)