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Axel Springer has lost his copyright infringement lawsuit against Eyeo GmbH, the company behind Adblock Plus. The German publisher, which owns the Bild and Die Welt brands, among others, claimed that ad blockers interfere with the rendering of websites in browsers, thereby violating copyright. In a victory for Eyeo, the Hamburg District Court has dismissed the case.
To fund their operations, millions of websites rely on advertising to generate revenue. However, for some readers, excessive or annoying advertising is something that needs to be combated, often through the use of ad blocking tools.
Developed by the German company Eyeo GmbH and available on Firefox, Chrome, Safari, Android and iOS, one of the most popular tools is AdBlock Plus. It's capable of drastically reducing the amount of advertising its users see, but that didn't sit well with publishing giant Axel Springer.
The publisher, owner of Bild and Die Welt, among others, claimed that AdBlock Plus and its users interfere with its business model, so in response, it took legal action to put an end to that. However, after trips to regional courts and eventually the German Supreme Court in April 2018, Adblock Plus and Eyeo came out on top have been declared non-infringing the competition law.
Axel Springer claims ad blocking is copyright infringement
After his defeat in the previous action, in 2019 Axel Springer filed a new claim on new grounds. This time, the publisher claimed that AdBlock Plus "changed the programming code of the websites, thus directly accessing the legally protected offer of the publishers." In other words, AdBlock Plus violates copyright law.
Eyeo immediately dismissed the accusations as "almost absurd," noting that its browser-side tool does not attempt to modify anything on Springer's servers. However, Springer went ahead with its legal action, claiming that by interfering with the delivery of the website to viewers, it constituted copyright infringement and warranted an injunction.
Springer compares ad blocking to cheating in video games
In his lawsuit, Axel Springer cited a 2012 sentence of the court which found that software for Sony's Playstation handheld console that changed code in memory to facilitate cheating was infringing. In that case, the court found that the temporary modification of the software constituted a software review, something that requires the permission of the rights holders.
In this case, there were no claims that AdBlock Plus changed or manipulated any copyrighted work. Instead, Springer claimed that the software interferes with the way copyrighted content is displayed in a browser. According to a ruling by the Hamburg Regional Court, that in itself is not enough to determine copyright infringement by AdBlock Plus or its users.
Court Dismisses Lawsuit
In a decision issued on Friday, the Court finds that Axel Springer is not entitled to injunctive relief under Section 91 (1) UrhG as there was no unauthorized duplication and/or reworking of computer software protected by copyright, as defined by copyright law.
โ[T]The defendants have not infringed the rights of the plaintiff on the programs for creating the web pages. The defendants are not, together with the respective user, complicit in copyright infringement,โ the decision says.
According to the Court, HTML files and other elements are loaded into the user's main memory when accessing web pages controlled by Axel Springer, but this occurs with the consent of the publisher. Users who access those pages and also use AdBlock Plus also have the right to store those files, since when the files are transferred, there is an implicit agreement for the user to do so.
Also, while AdBlock Plus changes the structure of how websites are presented in a browser, the tool doesn't change any code, only how that code flows.
Ultimately, the Court determined that the processes carried out by AdBlock Plus after local storage of the website do not constitute a "reworking" under copyright law. Only a change in the substance of the program can be considered a violation.
The Court notes that to rule otherwise would represent a "disproportionate intrusion" on users' freedoms to make a number of choices, including not loading images to save bandwidth, disabling Javascript, or blocking pop-up windows or tracking elements. It would also make translation tools and aids for the visually impaired infringe copyright.
Eyeo welcomes victory, Springer ready to appeal
In a statement released this morning, Eyeo says it has repeatedly defended the rights of Internet users, developers and software publishers and is happy that the decision represents a victory for a free and secure Internet.
โThe Hamburg Regional Court sets an important precedent here: No company has the right to prohibit users from configuring their own browsers. The ruling also gives many companies the legal certainty they need to continue developing applications that improve users' lives,โ says Till Faida, CEO of Eyeo.
While the case is now being dismissed, Axel Springer has already announced his intention to appeal the decision. That will take place before the Hanseatic Higher Regional Court, which previously ruled on the Playstation Portable cheating case.
