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A recent decision by Germany’s Federal Supreme Court (BGH) has reignited a critical legal debate concerning the legality of browser-based ad blockers. This ruling raises significant concerns about a potential ban on these widely used tools across the country.
At the heart of this dispute is a long-standing lawsuit initiated by the prominent online media company Axel Springer against Eyeo, the creator of the popular Adblock Plus browser extension.
Axel Springer contends that ad blockers directly threaten its core revenue model and argues that the execution of websites within web browsers constitutes a copyright-protected process. The publisher asserts that a website’s underlying HTML/CSS code is a protected computer program. Therefore, any intervention by an ad blocker that modifies the in-memory execution structures, such as the Document Object Model (DOM), CSS Object Model (CSSOM), or rendering tree, amounts to unlawful reproduction and modification of copyrighted material.
While a lower court in Hamburg previously dismissed this claim, the new BGH ruling found flaws in the earlier decision. The Federal Supreme Court overturned part of the appeal, sending the case back for further examination.
Last week, Daniel Nazer, Senior IP & Product Counsel at Mozilla, issued a stark warning. He highlighted that due to the intricate technical nature of the legal arguments, a ban on ad blockers could inadvertently affect various other browser extensions, severely restricting user choice and digital freedom.
“There are many reasons, in addition to ad blocking, that users might want their browser or a browser extension to alter a webpage,” Nazer explained, emphasizing use cases such as improving accessibility, evaluating accessibility standards, or enhancing user privacy.
The BGH’s ruling mandates a re-evaluation of Springer’s core argument. The court seeks a determination on whether elements like DOM, CSS, and bytecode should be classified as protected computer programs, and consequently, if an ad blocker’s modifications to these elements are legally permissible.
The BGH’s statement, through automated translation, noted, “It cannot be excluded that the bytecode, or the code generated from it, is protected as a computer program, and that the ad blocker, through modification or modifying reproduction, infringed the exclusive right thereto.”
Although ad blockers are not yet outlawed in Germany, the revival of Axel Springer’s case introduces a tangible possibility of a different outcome this time around. Mozilla anticipates that these renewed proceedings could extend for up to two years before reaching a definitive conclusion. In the interim, there remains a significant risk that extension developers could face liability for alleged financial losses incurred by publishers.
Mozilla further expressed concern that this uncertain legal landscape could lead to a “chilling effect” on browser users’ freedom. This might compel browser developers to implement stricter controls over their applications and prompt extension developers to limit the functionality of their tools to mitigate potential legal repercussions.
Related Topics:
AD BLOCKERCOPYRIGHTGERMANYLEGALMOZILLAPRIVACYSOFTWARE