• by Tony Silber , Staff Writer, January 19, 2022

A German court last week dismissed a lawsuit in Axel Springer’s long-running effort seeking to prohibit the use of ad blockers. In the suit, the media giant argued that its websites — down to the HTML code — were protected under copyright laws, and ad blocking software therefore alters protected content.

The suit, aimed specifically at the German ad-blocking company Eyeo GmbH and its program, AdBlock Plus, along with three other defendants, claimed copyright infringement that led to the underprinting of advertising content and editorial contributions that occur when using ad blockers, since they hide various elements of the page.

“The action is without merit,” the ruling from the Hamburg District Court stated. “The plaintiff is not entitled to the asserted injunctive relief. There is no unauthorized duplication and/or reworking of copyrighted computer programs within the meaning” [of German copyright laws.]

Publishers lose billions in ad revenue as a result of ad blockers. Springer first went after ad blockers in 2015 with a lawsuit against Eyeo, claiming anti-competitive behavior. At the time, more than 30% of Germans online used ad blockers. In the U.S. in 2021, 60% of younger users employ ad blockers on their laptops and desktops, with nearly 50% of people in other age groups doing so as well.

That suit was ultimately dismissed, too.

Opponents of Springer’s suit cheered the decision, calling it a victory for the  concept of a free and open internet. They said Axel Springer’s claim ignores the core principles and mission of the World Wide Web Consortium (W3C), which is to promote and manage open web standards.

Copyright protections that Axel Springer wants seem innocent on the surface, they claim. In fact, the result would be that most  browser features would become instantly illegal: privacy and anti-tracking technologies; website translation features; accessibility utilities for blind and handicapped readers; ad blockers, and more. Also, code developers — as well as ordinary users — would need to obtain permission from a publisher to grant an exception before visiting each and every site.

In a statement, Eyeo said the decision “sets an important legal precedent and defines who ‘owns’ the code underlying websites and how popular browser features and utilities can continue to operate lawfully on the public Internet.” It was the 16^th time it has prevailed against lawsuits, Eyeo added.

Axel Springer vowed an appeal.

“Ad blockers change the programming codes of websites and thus directly affect — in our opinion, in violation of copyright law — the legally protected offerings of media companies,” a company spokesman said via email. “In the long term, this not only damages a key financing basis for digital journalism, but also threatens open access to opinion-forming information on the internet. We do not understand that the Hamburg Regional Court has reached a different legal opinion. Since the decision contradicts the rulings of the Hanseatic Higher Regional Court, we will appeal the judgment.”

Julia Reda, a copyright expert and former member of the European Parliament, and an affiliate at Harvard University’s Berkman Klein Center for Internet and Society, hailed the decision in remarks submitted via Eyeo’s publicist.

“The court has correctly concluded that the copyright protection of software does not extend to the outputs of software,” Reda said. “Axel Springer is perfectly within its right to forbid the copying and modification of its own copyright-protected content management software. However, once the output of that software — the website of one of Axel Springer’s publications — is sent to the user’s browser, it is the user who decides through the browser settings how that content is to be displayed.”

“Just as copyright law does not entitle a book publisher to forbid readers from underlining sections of a book or writing in the margins, copyright law does not give digital publishers the power to tell users how to display a website,” she added.