To block or not to block, that is the question – German Supreme Court on ad-blockers
Marcel Pemsel
To block or not to block, that is the question – German Supreme Court on ad-blockers
A few topics ignite as much controversy at the intersection of
copyright law and the digital economy as ad-blockers. Publishers see
them as existential threats. Some even pose the question ‘Are ad-blockers killing the media?’.
Users view them as indispensable shields against the clutter of online
advertising. Providers of ad-blockers make a living on them. In this web
of interests, the German Supreme Court (‘GSC’) recently published its
long-awaited decision in Werbeblocker IV (case I ZR 131/23) dealing with the admissibility of ad-blockers.
Background
The
claimant is a publishing house and operates various online portals. To
monetise its content, it relies on advertisements delivered via embedded
scripts. The defendant, a company distributing the well-known browser
extension AdBlock Plus, developed software designed to suppress such
advertisements. Technically, the program works in two ways: (1) by
preventing the browser from requesting advertising content from servers
through blacklists (‘blocking’), and (2) by hiding ad elements in the
browser’s Document Object Model (DOM) and related rendering structures
(‘element hiding’).
The GSC described the way in which a website is accessed as follows (my translation from German):
"If a user enters the URL into his Internet browser, the browser requests the HTML file from the plaintiff’s server and stores it in the user’s random access memory. The HTML file contains elements that can be displayed directly (e.g. text) but also references to external storage locations (e.g. ad servers with stored advertising) from which further content can be requested.
The scripting language JavaScript is used for display, which serves, among other things, to adapt individual page elements and their display to the situation. Some of the scripts are directly integrated into the HTML file.
The user’s browser interprets (‘parses’) the HTML document using the so-called parsing engine. The result of the interpretation is an object structure, a so-called DOM node tree (DOM for ‘Document Object Model’). Among other things, JavaScript changes nodes of the DOM node tree. Even after the initial parsing of the HTML document and the initial construction of the DOM node tree, scripts are executed that modify the DOM node tree.
Formatting (e.g. colors, positions, typography) is done using so-called CSS (‘Cascading Style Sheets’). A CSS engine is used to build so-called CSS structures (in particular ‘CSS Object Model’; CSSOM). The DOM and CSS structures are merged into a rendering tree structure (‘Render Tree’) by means of a so-called render engine (‘data structures generated by the browser’)."
In 2016, certain editorial elements of the
plaintiff’s websites were not displayed due to an incorrect entry in a
blacklist of the defendant’s ad-blocker.
The publisher sued the
defendant and argued that its websites are protected as computer
programs and multimedia works and that AdBlock Plus makes unauthorised
reproductions and modifications thereof.
The District Court of
Hamburg dismissed the action. The Higher Regional Court of Hamburg
(‘Court of Appeal’) confirmed that outcome upon appeal and granted leave
to appeal to the GSC with respect to the question of modification of
the plaintiff’s websites.
The Court of Appeal left open whether
the data transmitted to the user when accessing the plaintiff’s websites
are protected as software in the meaning of Art. 1 Computer Programs Directive because
it denied a reproduction by loading the HTML file in the random access
memory (‘RAM’) due to an implied consent by the plaintiff.
The
ad-blocker does also not modify the plaintiff’s ‘software’. It merely
influences the websites through external commands but did not interfere
with its substance. The ad-blocker only has an effect on the data
structures generated by the user’s browser. The DOM node tree and the
CSS data structures are created differently than intended by the
plaintiff, which constitutes only interventions in the program sequence.
The data structures DOM node tree, CSSOM and Render Tree are not part
of the program substance. They are only calculated by the browser as
temporary data structures in the context of the display of the HTML
document.
The Court of Appeal also denied claims based on the
plaintiff’s websites being multimedia works. The plaintiff had not
sufficiently substantiated that its websites fulfil the criteria for
protection.
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The German Supreme Court’s decision
1. First, the judges clarified the scope of the appeal. The plaintiff attacked three aspects:
(1) The storage of the HTML file in the user's RAM as a reproduction of a computer program;
(2)
The modifying duplication and alteration of a computer program by the
influence of the attacked ad-blocker on the transparent data structures
(DOM node tree, CSSOM and render tree);
(3) A reproduction of the visible representations of the websites, which are to be regarded as multimedia works.
The appeal was only admissible with respect to the second aspect.
The
judges held that it is not necessary to determine in every case whether
the subject matter forming the basis of asserted copyright infringement
fulfils the requirements of a copyright-protected work, computer
program or related right. Rather, copyright protection can be assumed if
there is no infringement in any case.
2. The Court objected to
the Court of Appeal’s judgment insofar as it was not clear on which
subject matter and features of the presumedly protected work the court
based its finding of non-infringement. In order to reject claims for
copyright infringement, it is necessary to clearly determine the subject
matter of the protection and the features giving rise to copyright
protection. This applies also where the court assumes copyright
protection.
The Court of Appeal assumed that ‘the HTML file’ was
protected as a computer program because it contained elements that
could be displayed directly (e.g. text), but also references to external
storage locations, and that Java scripts were directly integrated into
the HTML document. Those files were not changed by the ad-blocker. The
latter only had an impact on the data structures generated by the
browser. Individual program commands of the plaintiff were blocked or
overwritten. The ad-blocker also actively and directly changed the code
of the website in a user’s browser. However, the substance of the
plaintiff’s software remained unaffected because it was a matter of pure
program execution.
A regards the variant of ‘element hiding’, the data structures were altered.
These
findings of the Court of Appeal did not, according to the Court,
explain what the code of the website’s HTML file (assumed to be
protected as a computer program) consisted of and why this code was not
interfered with by the ad-blocker. It was unclear and contradictory that
the Court of Appeal assumed, on the one hand, that the ad-blocker
merely interfered with the execution of the program but, on the other
hand, assumed that individual program commands of the plaintiff were
blocked and overwritten and that code was also actively and directly
changed.
The judges also criticised the Court of Appeal for not
addressing the plaintiff’s submission that virtual machines such as a
browser and the engines contained therein are not controlled by an
object code but by a bytecode, through which the virtual machine in turn
creates an object code for the computer’s CPU. It could not be ruled
out that the bytecode or the code created by it is a code protected as a
computer program and that this code is interfered with by the
ad-blocker.
For these reasons, the judges annulled the Court of Appeal’s decision and remitted the case back.
Comment
This
is the fourth decision of the GSC on ad-blockers. The first three
concerned predominantly unfair competition law and the Court considered
ad-blockers lawful. Now it is time for copyright to take the stage.
If
the Court of Appeal finds that the way in which the defendant’s
ad-blocker works infringes the plaintiff’s copyright, it will have to
deal with the following defences:
(1) Does making a website
freely accessible constitute implied consent to all reproductions
necessary for display, even if ad-blockers alter the way the website is
displayed?
(2) Could ad-blocking be necessary for the use of the
website in accordance with its intended purpose (Art. 5(1) Computer
Programs Directive)?
(3) Are the acts performed by the ad-blocker covered by the exception for temporary acts of reproduction in Art. 5(1) InfoSoc Directive?
The picture is by Victor Moragriega and used under the licensing terms of pexels.com.