
Are Adblock companies breaking the law? - DanBlake
http://harknesslabs.com/post/133804756984/are-adblock-companies-legal
======
gmisra
IANAL, but this feels like a good thing, that these issues are being hammered
out in the courts. I think most people would find the idea that simply viewing
a single webpage constitutes a contract with obligations to be unreasonable
(as opposed to subscribing to a gaming service).

If publishers want to be explicit about forcing me to read/tldr and
acknowledge a terms & conditions document, and then provide me with full
transparency into what information is collected, and full agency over where
else that information is transmitted, then yes, let us definitely engage in a
contract. But the former destroys pageviews (a poor proxy for engagement
anyway), and the latter will erode the massive grey-market in user-data and
targeted advertising. From where I'm sitting, I don't think it's in
publishers' best interests to shine a bright light on the current
publisher/reader relationship.

However, as history shows, entrenched institutions have plenty of influence
(cash) to transform a beneficial-to-them status-quo into "the law", e.g. when
DVRs came out and programmatic commercial skipping was deemed to be illegal:
[https://en.wikipedia.org/wiki/Commercial_skipping](https://en.wikipedia.org/wiki/Commercial_skipping)

Now might be a good time for some of us to donate to the EFF
[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

------
soyiuz
First, it is not clear if a web "surfer" is in a contractual relationship with
a random site s/he visits in a way that a Blizzard gamer is (by the virtue of
buying the game and clicking through the TOS).

Second, Blizzard game bots use a part of the company's codebase, where the ad
blocker works solely in my own browser. They do not rely on proprietary code
that belongs to someone else.

Finally, where the Blizzard bot is made with the single purpose of violating
Blizzard's TOS, the ad blocker has many legitimate uses, outside of any
aggrieved party. By this token, could we not go after Oracle or Mozilla for
facilitating the breach of contract in maintaining JavaScript (a language then
used to break the contract)?

~~~
bad_user
Without a license, there's nothing giving you the right to visit a website,
because the copyright law says so. Legally speaking, you either agree to
whatever license the website has in place, or you've got no right to view its
content. Of course, such a license cannot have provisions that conflict with
copyright or contract law and so doctrines like the fair use applies, etc.

Of course, you could say that you can't read any license, or any privacy
policy and you can't observe any unwanted behavior without first loading that
website. But then again, people could build and use an extension that blocks
websites and warns people of unwanted characteristics. But that's not what
people are doing.

> _Second, Blizzard game bots use a part of the company 's codebase, where the
> ad blocker works solely in my own browser. They do not rely on proprietary
> code that belongs to someone else._

That's a weak argument. Blizzard games do not run directly over hardware, but
on top of an operating system that exposes high level APIs, such as DirectX or
OpenGL, being in many ways just as high-level as the browser is.

~~~
patmcc
>>Without a license, there's nothing giving you the right to visit a website,
because the copyright law says so.

Is there any case law to back that up? That's a very odd reading of copyright
law. Would you make the same claim about listening to a radio, viewing a
television broadcast, or reading a poster?

~~~
bad_user
[https://www.eff.org/wp/clicks-bind-ways-users-agree-
online-t...](https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-
service)

[https://www.icann.org/en/system/files/files/decision-23jan04...](https://www.icann.org/en/system/files/files/decision-23jan04-en.pdf)

------
Zikes
Website terms of service are not viewable until you have already accessed the
web site. Unless the web sites give users an interstitial page wherein they
explicitly click a button to agree to the terms of service before proceeding,
then they would otherwise fall under Browse Wrap[1], for which most existing
legal precedence favors the consumer rather than the web site.

[1]
[https://en.wikipedia.org/wiki/Browse_wrap](https://en.wikipedia.org/wiki/Browse_wrap)

~~~
DannyBee
This isn't quite right. It varies, but in general, if you continue to use the
site, knowing such a TOS exists, you may be bound by it (you may not, it
depends on the terms, etc).

You would get a pass on "the first time you accessed the web site", not "every
time you did it afterwards knowing there was a TOS".

This all assumes you noticed it exists. There is another question of "can i be
bound by the TOS if i didn't ever know it existed" vs "can i be bound by a TOS
if i didn't bother to read and assent to the terms explicitly". The answer to
the first is "mostly no" the answer to the second is "mostly yes" (but again,
depends on the terms of the TOS).

This is what actual precedent is, anyway ;) The next question that gets asked
is basically "what if i just lie and said i never noticed it, what do they
have to prove", and the answer is "if you are willing to lie, this is a
worthless discussion to have".

~~~
Zikes
If the article seeks to attack the adblocking system itself, then I would
press that the most important utility of adblockers is that they block
dangerous elements on sites that the user has no history with or knowledge of.

I feel perfectly comfortable browsing HN with my adblocker turned off, but I
would want it turned on for 75% of the links I click from here.

Also, the above linked Browse Wrap wikipedia article stresses that precedent
for the web site only occurred when the web site prominently and repeatedly
displayed or linked to the TOS, especially near sections of the page where the
user was actually likely to look (e.g. near the "Checkout" button, rather than
buried in the footer).

Additionally they mostly regard actions taken on the web site, such as
downloading software or purchasing products. Currently there seems to be very
little expectation that the user is bound to a TOS by simply continuing to
browse a web site, and I'm curious if there even exists any cases dealing with
that.

~~~
DannyBee
"Also, the above linked Browse Wrap wikipedia article stresses that precedent
for the web site only occurred when the web site prominently and repeatedly
displayed or linked to the TOS, especially near sections of the page where the
user was actually likely to look (e.g. near the "Checkout" button, rather than
buried in the footer). "

This is an editorialization by wikipedia (sadly).

If you read the actual cases, you'll see they hinge on the standard contract
stuff.

IE "(1) Did the user have either actual or constructive notice

and

(2) Did the user assent"

What it takes to do this is pretty much 100% unclear overall, and wikipedia
stating otherwise is just plain wrong..

Both of these can be constructive/implied/etc, and are going to be what gets
argued about in front of a judge. The difference you see in caselaw is just
differences between what judges felt which was really fair.

You can find plenty of cases with only slightly different situations.

"Currently there seems to be very little expectation that the user is bound to
a TOS by simply continuing to browse a web site, and I'm curious if there even
exists any cases dealing with that."

Ye. Facebook's TOS, for example, has been enforced multiple times.

See, e.g, E.K.D. v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012). and

Fteja v. Facebook 2012 WL 183896 (SDNY 2012)

The only agreement you find there is it's conspicuous that they add the words
"and you are indicating you have read and agree to the terms of service" in
various places.

So if that continues to be held enforceable, you'll probably see folks do
that, and problem solved.

The rest of caselaw is still a mismash. For every example you can find a
counterexample.

Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. Lexis 6483 (C.D. CA.,
March 7, 2003) (held bound to TOS just from browsing)

vs

In re Zappos.com, Inc. Customer Data Security Breach Litigation, 893 F.Supp.
2d 1058 (Dist. Ct. Nevada 2012). (TOS was not conspicuous enough)

vs

Hubbert v. Dell Corp., 2005 WL 1968774 (Ill. App. Ct. 2005) (court upheld
arbitration clause in Dell’s for cause regarding alleged false claims made by
Dell to online purchasers of the computers. Court found different colored
hyperlinks on each page like a multipage contract)

etc

So i return to my original statement: Most of the court cases seem to depend
more on what relief is being sought and what the TOS says more than what
happened and where it was. They shouldn't, but they are :)

Forum selection clauses, for example, that nobody likely read, have the
carnival cruise precedent from SCOTUS (TL;DR forum selection clause on back of
printed ticket that nobody ever saw until after they purchased is binding)

However, all cases i've seen where the user was told "and you agree,
explicitly, to the terms of the TOS" somewhere mildly conspicuous, came out in
favor of the TOS holder, even when no explicit assent was given through
clicking, etc.

The cases pretty much all agree on that.

------
Zikes
Can we make a "User TOS" standard wherein a link to a user's personal Terms of
Service is embedded in, say, a "User-TOS" GET header, which could include
terms implying that by continuing to serve content to the user the web site
accepts the user's terms?

Preferably the TOS would include verbiage to continue blocking ads, to forbid
the use of tracking cookies, and other such pro-consumer terms.

~~~
thwarted
There's always Platform for Privacy Preferences[0], which is kind of what you
suggest, but specifically in the context of where the TOS/site policy talks
about user identity/information. It ultimately ended up being more of a thorn
in the side of server operators because, IMO, of the way Microsoft implemented
the UI in IE's preferences (and that few other browsers actually honored it).

[0] [https://en.wikipedia.org/wiki/P3P](https://en.wikipedia.org/wiki/P3P)

~~~
Zikes
That doesn't sound quite right to me, as it's pitched as a system for web
sites to implement individually to try to standardize user privacy systems. My
suggestion is more along the lines of how a web site TOS works right now: it's
going to be different for everyone, but it's accessible to the target and by
continuing to serve content they implicitly agree to it and therefore are
legally bound by it.

If we're expected to read and agree to every single web site's TOS or face the
consequences, it's only fair if the reverse is also true.

------
baddox
If it's illegal for me to choose which network requests my computer makes
and/or accepts, or illegal for someone to create software to help me do that,
I think that law is ludicrous and I want it to be changed.

~~~
SamReidHughes
If you want to control your network requests, then don't agree to a contract
that gives up such rights.

~~~
baddox
Sounds good, although I've never agreed to or even seen such a contract, and I
don't know anyone who has.

------
Sideloader
The advertising model is, among other things, transforming the once vibrant
internet media landscape into a cesspool of floundering and money losing
companies chasing clicks and eyeballs in a desperate race to the bottom.
Interesting and unique content is jettisoned for the most banal, formulaic
click-baiting bullshit imaginable. The sooner the ad supported internet dies,
the better.

I have no problem paying for access to quality content and am more than wiling
to pay for more of it. But if my only is option consists of being inundated
with annoying and intrusive ads at every turn, I will block them at every turn
and feel not a pang of guilt and regret.

It's a bit rich for organizations that promote self-interest and free markets
to harangue their customers with lectures on the immorality of ad blocking. I
am acting out of self-interest when I choose to block ads and the market
should have gotten the hint by now that the public (i.e., customers or
potential customers) put with ads as a necessary evil - at the best of times.
This is not the best of times: internet ads are intrusive, hog resources, are
served by dodgy outfits, present security risks, are an eyesore, and often
flog stuff that I will never ever buy. Therefore, I block ads q

Come on , is this pitiful whining about the evils of ad blocking really coming
from the same is w tech industry that touts adaptability, innovation and the
willingness to try new things as core strengths? The market has spoken and it
has said loudly and clearly "ads suck, dude!" Therefor, I actively and with
not even a pang of guilt, block ads. On both by mobile devices and big
computer I use open source host file tweaks rather than a "commercial" plugins
(Adblock, AdBlock Plus). Way less bloat, more robust and no backroom deals
selling whitelist space to advertisers.

Jaron Lanier has been widely criticized, even ridiculed, for his, admittedly
convoluted, micropayment system concepts but at least he's thinking about the
possibilities. Because the ad serving model is doomed to a slow death by ever
diminishing returns. Now is the time to innovate.

Last word goes to Lanier and his succinct take on the, heh, bad taste left by
an ad driven world: “Funding a civilization through advertising is like trying
to get nutrition by connecting a tube from one’s anus to one’s mouth.”

------
smackfu
If a site's terms of service said that access with IE was not allowed, and
someone used IE to access the site, could the site sue Microsoft? What about
if IE was installed by someone else, are they interfering with the site's
contract?

------
DannyBee
So, it's very funny to look at some of the reactions here. For a group of
people who seem to also think they would be great at self-study law ;P, most
of them are mostly knee-jerk and come out to "i don't think i should be bound
by this, so clearly the law says what i think" or "i think this is a bad idea,
so clearly, the article is wrong", instead of making arguments based on actual
law and precedent, or even something sane.

~~~
CaptSpify
Is there a lot of current applicable law on this? It seems a new area in which
the laws haven't really kept up, thus the disconnect

~~~
DannyBee
There are at _least_ 40+ cases on it.

Now: do those cases form some coherent set of rules? No. But there is actually
a lot of law on it ;)

------
zombees
There is one important difference with comparing MDY to adblock though. MDY
made software specifically for WoW. Adblock does not make software
specifically to target Business Insider or anyone else. Further, if this
precedent was set, you could possibly go after people using out of date
browsers that can't display your ad content perfectly or viewing text only or
a million other ways in which ads wouldn't be left in their pristine state.

~~~
bryanlarsen
Those million other ways are missing two important principles of tortuous
intereference:

\- intent

\- knowledge that they're interfering with a contract.

~~~
zombees
Yes, but you could probably make a case for sending DMCA takedowns to the
chromium repo because someone doesn't like that the old versions "circumvent"
the ads at which point the ball is in their court. If they fail to take
action, they now have knowledge and potentially "intent"

------
trebor
Just a moment, is the argument stating that an implicit contract (that is, the
Terms of Service) which I was not _required_ to accept to browse the website,
can make using an Ad Blocker illegal?

What about: malware distributed through ad networks, offensive advertisements
(the original reason I installed an ad blocker!), and so many advertisements
that a midrange spec'd machine staggers when scrolling or navigating?

~~~
anowlcalledjosh
By browsing the website, the argument is that you implicitly accepted the ToS.
It's legally shaky, and generally the ToS or a link to them must have been
provably shown to the user.

[https://en.wikipedia.org/wiki/Browse_wrap](https://en.wikipedia.org/wiki/Browse_wrap)

~~~
spinlock
How far can you take that? Can a spammer put up a TOS claiming that by
accessing their site you are agreeing to host their botnet?

~~~
anowlcalledjosh
Presumably, but the botnet is still likely to be used for illegal purposes,
which will get someone (hopefully the spammer, but IANAL) prosecuted.

------
makecheck
On the one hand, it's not reasonable to treat "blocking" as the problem that
needs a law. Sanity-preservation aside, when ISPs can charge people through
the nose for the amount of data being used, some form of blocking software IS
REQUIRED. (If sites stop auto-running full-screen video ads with sound, or
ISPs stop being complete thugs, then we can talk.)

On the other hand, to the extent that people are more willing to pay ad-
blocking companies than the web sites that provide content, I think something
needs to change. Ad-blocking companies seem to earn a lot of revenue,
disproportionate to their value-add. Compared to all the complex products in
the world trying to make a buck, the DOM analyzers and regex lists in ad-
blockers are hardly ground-breaking things worthy of massive income. They
benefit primarily from having a huge audience.

I've commented before[1] on how protocols might cage data use and scripting in
a reasonable way.

[1]
[https://news.ycombinator.com/item?id=10407810](https://news.ycombinator.com/item?id=10407810)

------
212d1d
Do you not have to 'accept' the TOS prior to using a Blizzard bot? I am not
told to accept (or even view) the Business Insider's TOS prior to use.

IANAL, both it's obvious that parties must agree for a contract to be valid.
It can not be implied. I can not hang a mortgage contract on my wall in the
bank and bypass the need for individual acceptance.

------
vox_mollis
All this absurd hand-wringing about adblockers would be very easily addressed
if content providers would, collectively just offer paid subscription options.
Say, a Spotify Premium for the written word.

I don't like ads, and I'm willing to pay to not see them. But nobody seems to
want to take my money.

~~~
Zikes
The problem with that model is that there are too many competing companies. As
it is, you have to subscribe to half a dozen online publications if you don't
want to hit a paywall for every other link posted to HN.

But even if there were a single service to manage those subscriptions, I would
lament the monopoly.

Honestly, I think ads are the solution, but only if they drop all the anti-
consumer BS associated with them.

------
Raed667
Easy, one argument response: The user should be in control of the code
executed on his computer.

~~~
blainesch
Couldn't the same argument be used for the blizzard bot? One is more
intentionally telling users to break the TOS, but at the end of the day the
user is running the code.

~~~
pdonis
And the remedy is the same in both cases: if the provider really doesn't want
people using clients that do certain things, the provider needs to control
access so that only clients that don't do those things can access their
server.

In the case of Blizzard, this would mean forcing gamers to run clients that
were known by Blizzard to not contain bots; for example, Blizzard could force
users to use signed client binaries. Blizzard might actually be able to get
away with this because their users are paying customers who really, really
want to play their game.

In the case of a website running ads, this would mean forcing viewers to run
clients that were known by the website to not contain ad blockers; for
example, the website could force viewers to run signed browser binaries. Of
course, no site that runs ads will try this, because it would just mean nobody
would view their site. Notice that sites whose users actually _need_ to go
there to do business, such as banking sites or Amazon, don't complain about ad
blockers. It's only sites whose business model depends on ads that do. That
should be a "here's your sign" moment to ad-supported sites that their
business model is not sustainable. It should not be an excuse to sue ad
blockers.

~~~
stevesearer
I'm of the mindset that most people actually like advertising when the
advertisements are highly relevant and not in-your-face.

My first job was at a movie theater and we lined the wall with movie posters
of the movies coming out. People just walked over to them and checked them out
to see if there was anything of interest coming out in the next few months.

One of the activities in the city I live in now is a movies in the park which
is sponsored by some local company. They show a quick 2 minute ad or something
and mention that the company sponsored the activity. I wouldn't ever pay to go
watch the movie, and am always glad that the sponsoring company essentially
paid for me.

It is unfortunate that most modern advertisements online don't try to take a
similar approach and show highly relevant ads or just sponsor something they
want to exist.

I run a site which is 100% ad-supported, so I'm obviously biased.

~~~
pdonis
_> I'm of the mindset that most people actually like advertising when the
advertisements are highly relevant and not in-your-face._

I may be an outlier, but I have never gotten any useful information from ads,
so I have never had an ad be "highly relevant" for me. Also, to me, any ad in
my field of view is "in your face", because it takes mental effort even to
filter it out.

 _> I wouldn't ever pay to go watch the movie_

Do you buy any of the products of the company that sponsors the movies?

~~~
stevesearer
The site I run displays photos of office interior design and the ads are
relevant in that they are photos of products related to office interior design
(chairs, desks, lounge furniture...)

One interesting case was a recent ad for a new phone booth product for offices
which is generally relevant to my readers, but also specifically relevant
because of the current huge desire for private and quiet space in modern open
office environments. That ad has performed much, much higher than average.

Regarding the movies thing, no I haven't purchased any products from the
sponsoring companies, but I am glad that they paid for me to attend the event
in the same way I would be glad if my friend paid for me to attend an event.

------
CodeSheikh
How about publishers start spending more on R&D and less on useless law suits.
Ditch the whole ad-network/ ad-exchange model and start offering native ads.
Ads that are deeply embedded in content. Sure they would have to hire more
designers and content writers to come up with these ads more frequently but it
might be the right and/or only alteration of business model publishers have to
opt for. Partnering up with third party businesses directly and ditching the
useless middle man (aka ad exchanges) would be better.

------
hartator
> do that bad thing anyways.

It's a bit of a moralist jugdment.

You can argue advertising companies are breaking the law as well. (Privacy,
malware distribution, ads for gambling, no clear sepration between ads and
content...)

------
seanalltogether
But the WoW bot was interacting with Blizzards servers and sending changeable
actions that could affect the state of their servers. It feels like there's
much more to this then a simple TOS.

~~~
zombees
More important is that it's designed to interact with blizzards servers.
Adblock is a generic utility

~~~
michaelbuckbee
Different Adblockers work in different ways, some block based on size/shape of
images (IAB standards) but the most prevalent method is regex'd URL
identification to known ad+tracking sites.

~~~
zombees
True, but the sites it's working against aren't the content providers, just
the advertisers. As such, it's not intending to help you violate anyone's TOS
in particular (except maybe and advertiser).

------
Aldo_MX
It should also be illegal to collect information from users without their
explicit consent.

So what are they trying to achieve?

~~~
scriptproof
That is the purpose of this cookie consent banner ublock removes too!!!

------
oldmanjay
Good luck forcing me to make the requests you think I should be forced to
make, marketers. Good luck indeed.

------
falcolas
If I provide my os with a list of domains not to make requests to (via a hosts
file) is the OS provider doing something illegal?

After all, they knew it could be used to circumvent connections required by
bits of software.

Another legal grey area with potential unintended consequences.

------
eveningcoffee
If I am going into kitchen during the commercial break then am I breaking the
law?

------
robotkilla
I wish someone would start a privacy religion and use it to demand privacy as
a religious right.

------
Canada
Take away ad blockers and I will start pirating news. That is, extract and
redistribute without ads.

I'm already tempted to start doing it. Even with noscript and adblocker plus
the news sites are annoying to deal with.

~~~
toddynho
Or you could just start using Flipboard, Instapaper, Pocket, or the 17 other
news reading apps.

------
intrasight
How would DCMA even apply to something "open" like HTML?

~~~
DanBlake
If you write a huge javascript library and started selling it, then someone
stole it and released it for free- you would issue a DMCA because you own that
code. Just because its HTML doesnt make it 'not free'

~~~
intrasight
What you are describing is pre-DMCA copyright. What DCMA added was laws which
add sanctions against reverse-engineering closed systems.

~~~
Zikes
Amongst other things, including the new avenues for filing breaches of
copyright against web sites and content providers.

------
efaref
No.
([https://en.wikipedia.org/wiki/Betteridge's_law_of_headlines](https://en.wikipedia.org/wiki/Betteridge's_law_of_headlines)).

