Ad-blockers may lead to increased litigation

I found this article published on CNET’s website which takes up the discussion of whether ad-blocking software applications would lead to litigation. Similar lawsuits have been lodged in relation to other ad-circumventing technologies. In 1979 (when I was only 1yrs old), the movie studios sued Betamax, claiming that its VCR users would fast-forward through commercials. They lost. The courts being of the opinion that only 25% of users did so. However, in 2003, ReplayTV, which sells digital video recorders, were made to drop a feature called Automatic Commercial Advance after facing a lawsuit from major TV networks and movie studios over that and other issues. The lawsuit was dismissed the following year.

But before you decide to brush it off as “in America anything is possible”, there are some valid reasons for why preventing ad-blocking applications is necessary and perhaps reasonable. Any lawsuit would likely invoke two arguments--that copyright infringements are taking place (through derivative works), and that the Web site's terms of service agreement is being violated.

In a 2003 American appeals court decision related to a copyright dispute over the file-sharing service Aimster, 7th Circuit Judge Richard Posner concluded that commercial-skipping creates "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." By "derivative work," he was referring to a concept from copyright law that says it's generally unlawful to make a new work out of an existing copyrighted one without permission.

The second argument claims that a Web site's terms of service are a "browsewrap" or "clickwrap" agreement that are legally binding. A "clickwrap" license that requires a visitor's agreement to proceed. These are normally included in the online application form for many online services or softwares (where you have to click a box saying that you have read and understand the terms and conditions – of course none of us really bother to read them, and they tend to be in legal language (considering the fact that they are legal documents) and so many wouldn’t even likely understand them).

Many Web sites prohibit any kind of ad-blocking in their terms of service agreements. MySpace.com prohibits "covering or obscuring the banner advertisements on your personal profile page, or any MySpace.com page via HTML/CSS or any other means." I’m sure that Google, hotmail, Yahoo!, MSN, Facebook, etc all have similar terms.

The reason why I think that at least a certain amount of advertisement, although admittedly annoying, is necessary and reasonable is because many of these online services are offered to users for free. As such, they make a substantial portion of their revenue from such online advertising. The reason why many advertisers are willing – many times competing – for advertising spaces on such websites is primarily because of the website’s user base. Now imagine if there were ad-blockers readily available to block out advertisements from such websites. Wouldn’t everyone use them? What would then ensue? Would advertisers want to continue advertising? What would then happen to such websites?

Of course a balance has to be struck, but it is important to be reasonable, understand the mechanics of the businesses involved, and then to accept that online advertising is a necessary evil at times. We cannot expect to get a free meal with no strings attached. This is life.