First of all, I disagree with your assessment of these cases, especially Clearplay in Huntsman. The reason why they were excluded was not because they were purchasing copies of DVDs 1:1, Clear View required this as well. The difference between Clear View and Clearplay was that Clear View created new DVD-Rs as an output product and thus was creating derivative works without permission, as did nearly all other named defendants. Clearplay did not produce any derivative works by it's operation, which was entirely in memory in the player as an edit list. This is why it was specifically dismissed as a defendant.
The Clearplay technology was almost identical in function, implementation, and spirit to an ad-blocker. The same could be said in less specificity to the Game Genie in Lewis Galoob.
Now I understand the underlying frustration expressed in what you are saying, but you are assuming that there is some sort of contract (explicit via TOS or implicit) between the content consumer and the content provider that stipulates that you are receiving the content for free in exchange for also viewing it with advertisements inline.
I have not seen such TOS before and I don't think they are enforceable. At least it hasn't been tested in court in the states.
This is complicated by the fact that most websites do not host ads but merely provide a mechanism by which 3rd party networks' content alongside, and the only concrete business relationship exists between the website and the ad network, where the profitability of it is reflected in the ad network's perception of performance.
It is the responsibility of the ad networks and the content providers to use psychology, technology, tricks, etc. to increase the performance of the placed ads; the consumer has no obligation here. The ability for a consumer to ignore or block an ad must be factored into the numbers or the strategy.
One method that can bypass all of this is to use ad-block detectors that annoy or block viewers not seeing ads, or to self-host adnetwork content and adjust TOS accordingly. This is not popular, more complicated, and reduces overall impressions, but I think it's the right way to go if you want to lean on an interpretation of copyright law.
I still don't think people are violating copyright law if they choose to use technological mechanisms to try to suppress what they don't want to see, but it's a lot harder to implement in that case since you can quite easily change it in ways to increase impression rates.
The Clearplay technology was almost identical in function, implementation, and spirit to an ad-blocker. The same could be said in less specificity to the Game Genie in Lewis Galoob.
Now I understand the underlying frustration expressed in what you are saying, but you are assuming that there is some sort of contract (explicit via TOS or implicit) between the content consumer and the content provider that stipulates that you are receiving the content for free in exchange for also viewing it with advertisements inline.
I have not seen such TOS before and I don't think they are enforceable. At least it hasn't been tested in court in the states.
This is complicated by the fact that most websites do not host ads but merely provide a mechanism by which 3rd party networks' content alongside, and the only concrete business relationship exists between the website and the ad network, where the profitability of it is reflected in the ad network's perception of performance.
It is the responsibility of the ad networks and the content providers to use psychology, technology, tricks, etc. to increase the performance of the placed ads; the consumer has no obligation here. The ability for a consumer to ignore or block an ad must be factored into the numbers or the strategy.
One method that can bypass all of this is to use ad-block detectors that annoy or block viewers not seeing ads, or to self-host adnetwork content and adjust TOS accordingly. This is not popular, more complicated, and reduces overall impressions, but I think it's the right way to go if you want to lean on an interpretation of copyright law.
I still don't think people are violating copyright law if they choose to use technological mechanisms to try to suppress what they don't want to see, but it's a lot harder to implement in that case since you can quite easily change it in ways to increase impression rates.