• by Wendy Davis  @wendyndavis, May 3, 2012

Ad networks should take steps to prevent online ads from appearing on "rogue" sites that are dedicated to copyright infringement or counterfeiting, the major ad industry trade groups said on Thursday.

The Association of National Advertisers and American Association of Advertising Agencies issued a "statement of best practices" calling for marketers and agencies to require that ad networks use reasonable measures to prevent ads from appearing on rogue sites.

The best-practices statement also calls for ad networks to remove placements on rogue sites in response to "reasonable and sufficiently detailed complaints" by either advertisers or content owners. The groups say that ad networks should offer refunds when ads appear on rogue sites.

The Interactive Advertising Bureau is supporting the initiative. "What we really liked about this approach is that it was a market solution," says Mike Zaneis, IAB senior vice president and general counsel. "The reality is that most ad networks already devote resources to trying to review their publisher partners, to make sure that they're not serving ads into illegitimate sites."

The best-practices document uses some of the same language as the Stop Online Piracy Act and Protect IP Act -- controversial anti-piracy measures that were tabled by Congress earlier this year. Those bills also talked about "rogue" sites that were "dedicated to infringement."

One of the major objections to those measures was that they defined the concept of dedicated to infringement so broadly that the law could have encompassed many sites with user-generated content.

The ANA and 4As say they don't intend to prevent ads from appearing on "legitimate social media or user-generated content sites." The groups also say rogue sites have "no significant, or only limited, use or purpose other than engaging in, enabling or facilitating" infringement.

Dan Jaffe, group executive vice president of government relations at the ANA, says the term "rogue site" is meant to apply to a site that "any balanced person" would deem dedicated to infringement.

Despite the ad organizations' attempt to craft a definition, the rogue-site concept remains murky, says copyright expert Eric Goldman, a law professor at Santa Clara University. "In the end, we still don't know what a rogue site is and when we're going to encounter it," he says.

For instance, some groups have said that the cyberlocker Rapidshare should be considered a piracy site. But Rapidshare prevailed in at least one U.S. court battle stemming from piracy allegations. In 2010, U.S. District Court Judge Marilyn Huff in the Southern District of California refused to grant an injunction against the hosting service in a lawsuit brought by adult entertainment company Perfect 10. She ruled that Rapidshare -- which allows users to upload large files to a site with a unique URL -- didn't appear to contribute to piracy by users, and was capable of non-infringing uses. (That case was subsequently settled.)

Zaneis says the debate surrounding SOPA and Protect IP, as well as the definition of 'rogue site,' shows why "market solutions" are preferable to new regulations. "Market solutions are much easier to craft and implement," he says. "We know it's not going to be an airtight system, or a complete panacea, but we think it's a step in the right direction.

Some companies have already taken matters into their own hands. Group M already maintains a blacklist of around 2,000 piracy sites, and prohibits vendors from clients' ads on any of those sites.