As Adblocking = Copyright Infringement Argument Goes Down, German Publishers Claim Antitrust

German publishers have seen their argument that adblocking is copyright infringement go down in flames. Now, they are claiming antitrust instead.

Online advertisements have always been a sore spot on the Internet from almost the very beginning. Whether it is those infernal pop-up ads from the 90’s to the constant interrupting ads on YouTube, online advertisements have constantly been a source of grumbling from Internet users. In a lot of cases, it is with good reason why users get annoyed. For one, advertisements tend to be unsightly and clutter up an otherwise clean interface. For another, there have been plenty of cases where advertisements have served malware in the process (knowingly or unknowingly by the website owners).

Yet, to this day, online advertisements are still a big thing online. This is because there is money to be made in serving them from the website administrators side of things. After all, web hosting and domain names cost money – not to mention hiring staff to help run and deliver content through the website in the first place. Indeed, some sites, like Wikipedia, run on donations. So, it is possible to exist without advertisements, but in the real world, that is an incredibly hard thing to pull off successfully.

Another popular way to generate revenue to keep the websites proverbial lights on is through subscriptions and selling things like t-shirts. Again, this depends on users willingly parting with their hard earned cash to help support a website they enjoy. Again, this is an incredibly tall order.

So, the default way of handling things from a website administrator is to simply plug your nose and putting advertisements on your site. This is especially true for sites that are just starting out. Most administrators know that users don’t like them, but what other choice does that administrator have in the first place?

Of course, on the flip-side is that some of these website administrators start getting greedy. If one advertisement makes “X” dollars, what about 5 advertisements? How about instead of placing ads on a fixed space, what about covering the entire website with an advertisement and forcing users to sit there for 15 seconds before proceeding to the site? Why not simply cover half the site with just one advertisement? Simply put, some administrators care more about the user experience than others.

So, it is little surprise that adblocking became a thing in the first place. Do you really need advertisements taking up 90% of the screen space? Do you really need over 20 trackers to serve ads? Probably not. There is a line for a number of users and some of these sites easily crosses that line. So, they’ve taken to plugins like Adblock Plus, uBlock Origin, or NoScript to declutter their experience. This did lead to a brief arms race as some websites didn’t take to kindly to this activity and started implementing ad block blockers. This led to messages saying to disable ad blocking to their site to continue using the site.

These days, web browsers have implemented ad blocking and tracker blocking capabilities, building these features straight into the browser. We think the better approach in all of this is to simply respect the user decision. If you block tracking and ads, we respect your decision. If you want to support this site, we humbly request allowing ads. If that is an absolute no-go, then we humbly request you to consider supporting us in other ways. The short of it is we want to build that positive relationship with the reader rather than thinking of you as just a commodity – and that should be the way to go for other sites as well.

Sadly, not every site owner or publisher takes that approach. In one apparent extreme example, German publishers decided to take the completely insane approach of considering ad blocking copyright infringement. The general idea is that if you are viewing content while blocking the advertisements, then this is akin to stealing said content in the first place. Legally speaking, this is completely insane. Apparently, a court judge agreed with that assessment. From TechDirt:

Axel Springer decided that can’t be left to stand, and decided to try again with everyone’s favorite tool of control: copyright. In 2019 Springer came up with a bizarrely stupid argument that ad blocking is copyright infringement. The argument was that because the browser extensions change how a website is displayed in your browser, that it “changes the programming code of websites” and that makes it infringing. But that’s nonsense. Adblockers work on content that is already directly in your browser that the company sent in an authorized manner.

It’s the equivalent of saying that taking a highlighter to a book that you own is copyright infringement.

Thankfully, last week a court in Hamburg saw it that way as well and said that adblocking is not infringement. This is important not just for adblocking but for basically any kind of browser extension and for the concept of HTML itself.

It leaves one to wonder if some of these publishers somehow feel entitled to that money. It’s not really far fetched to think that way given how this inherently flawed legal argument was even formulated in the first place. Mike Masnick commented at the end of this article with this:

But it certainly does tell us just how much big publishers like Axel Springer will seek to abuse copyright law to gain extra control over users…

We’re not sure if Masnick was aware of the next legal challenge these publishers took as this was so recent, but apparently, Axel Springer is now suing Google. This in an effort to stop their Privacy Sandbox initiative with Google Chrome. From TechCrunch:

German publishers are the latest to band together to try to derail or at least delay Google’s “Privacy Sandbox” plan to end support for tracking cookies in Chrome via a complaint to the European Commission.

The Financial Times reports that hundreds of German publishers, advertisers and media and industry groups — including local powerhouse Axel Springer (which publishes titles like Bild and Politico) — have submitted a complaint to the bloc’s competition chief, Margrethe Vestager, arguing that Google’s plan to phase out support for third party cookies from its Chrome browser and replace tracking infrastructure with alternative (and it claims) more privacy-respecting alternatives for ad targeting breaches EU competition law.

This is not a novel argument. The UK’s competition watchdog, the CMA, has been considering similar complaints since 2020 — and is in the process of consulting on a series of behavioral and operational commitments offered by Google in a bid to avoid a full ban on the migration in that market.

While the UK is no longer in the EU, Google has said that if the country’s Competition and Markets Authority accepts its Privacy Sandbox commitments it will apply them globally — meaning they would also apply in and be relevant for the EU (which is not the same as saying they would be automatically acceptable to the bloc’s own regulators, however).

German publishers and advertisers don’t seem impressed by Google’s offer, though.

At least not judging by the 108-page complaint reviewed by the FT — in which it reports that Axel Springer, along with the country’s federal association of digital publishers and a number of others argue the planned changes will damage their businesses while allowing Google’s ads-based search business unaffected as it will collect to be able to collect vast amounts of user data.

Per the FT’s report of the document, the companies argue they must be allowed to continue to ask users for consent to process their data for ad targeting “without Google capturing this decision”; as well as urging that “Google must respect the relationship between publishers and users without interfering”.

Google’s Privacy Sandbox is basically a move to shift away from third party cookies – something that privacy advocates have been saying is long overdue. Here’s one explanation of what the Privacy Sandbox does from Sortable:

Google’s plans to kill off third-party cookies sent waves of shocks through the world of online publishers and for good reason. Many publishers fear that this is the end of online advertising, or at least advertising as we know it.

There are multiple reasons behind Google’s move to phase out support for third-party cookies, and the biggest of them is the fact that these cookies can lead to a misuse of personal data and infringe on the user’s privacy.

The rising awareness of privacy among users is another reason behind the decision. More and more users have become concerned with the way third-party vendors are collecting their data, which has led to privacy laws such as GDPR, LGPD, and CCPA.

But Google has a plan, so in the absence of third-party cookies with the Chrome browser, the company intends to launch its own tools as an alternative for advertisers to use Google’s first-party data.

So, a plan to make the web more privacy friendly, what could go wrong? Well, it is a Google initiative – and Google is a very big player in the online advertising world. As it turns out, these initiatives aren’t exactly going over well for privacy advocates either. From the EFF (Electronic Frontier Foundation):

No one should mourn the death of the cookie as we know it. For more than two decades, the third-party cookie has been the lynchpin in a shadowy, seedy, multi-billion dollar advertising-surveillance industry on the Web; phasing out tracking cookies and other persistent third-party identifiers is long overdue. However, as the foundations shift beneath the advertising industry, its biggest players are determined to land on their feet.

Google is leading the charge to replace third-party cookies with a new suite of technologies to target ads on the Web. And some of its proposals show that it hasn’t learned the right lessons from the ongoing backlash to the surveillance business model. This post will focus on one of those proposals, Federated Learning of Cohorts (FLoC), which is perhaps the most ambitious—and potentially the most harmful.

FLoC is meant to be a new way to make your browser do the profiling that third-party trackers used to do themselves: in this case, boiling down your recent browsing activity into a behavioral label, and then sharing it with websites and advertisers. The technology will avoid the privacy risks of third-party cookies, but it will create new ones in the process. It may also exacerbate many of the worst non-privacy problems with behavioral ads, including discrimination and predatory targeting.

Google’s pitch to privacy advocates is that a world with FLoC (and other elements of the “privacy sandbox”) will be better than the world we have today, where data brokers and ad-tech giants track and profile with impunity. But that framing is based on a false premise that we have to choose between “old tracking” and “new tracking.” It’s not either-or. Instead of re-inventing the tracking wheel, we should imagine a better world without the myriad problems of targeted ads.

In response, the EFF launched a site called AmIFLoCed which makes these comments:

Google is running a Chrome “origin trial” to test out an experimental new tracking feature called Federated Learning of Cohorts (aka “FLoC”). According to Google, the trial currently affects 0.5% of users in selected regions, including Australia, Brazil, Canada, India, Indonesia, Japan, Mexico, New Zealand, the Philippines, and the United States. This page will try to detect whether you’ve been made a guinea pig in Google’s ad-tech experiment.

Third-party cookies are the technology that powers much of the surveillance-advertising business today. But cookies are on their way out, and Google is trying to design a way for advertisers to keep targeting users based on their web browsing once cookies are gone. It’s come up with FLoC.

FLoC runs in your browser. It uses your browsing history from the past week to assign you to a group with other “similar” people around the world. Each group receives a label, called a FLoC ID, which is supposed to capture meaningful information about your habits and interests. FLoC then displays this label to everyone you interact with on the web. This makes it easier to identify you with browser fingerprinting, and it gives trackers a head start on profiling you. You can read EFF’s analysis and criticisms of FLoC here.

The Chrome origin trial for FLoC has been deployed to millions of random Chrome users without warning, much less consent. While FLoC is eventually intended to replace tracking cookies, during the trial, it will give trackers access to even more information about subjects. The origin trial is likely to continue into July 2021, and may eventually affect as many as 5% of Chrome users worldwide. See our blog post about the trial for more information.

So, from the EFF’s perspective, this privacy sandbox idea isn’t exactly earning high praise from the privacy front either. As a result, this is one of those cases where it’s hard to root for anyone here. On the one hand, it’s a bit of a stretch to say that Google is acting in an anti-trust manner by making changes to its own browser. On the other hand, Google is also looking out for its own interests when it comes to their own advertising market as well when pushing this initiative.

Really, one can only look at these developments and give a big sigh to it all. It boils down to this: which do you prefer? Some random assortment of third parties trying to put tracking cookies on your web browsers or Google basically doing the same thing. If it was me, I would say “neither”, but that’s just me.

Drew Wilson on Twitter: @icecube85 and Facebook.

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