IANAL, but this feels like a good thing, that these issues are being hammered out in the courts. I think most people would find the idea that simply viewing a single webpage constitutes a contract with obligations to be unreasonable (as opposed to subscribing to a gaming service).
If publishers want to be explicit about forcing me to read/tldr and acknowledge a terms & conditions document, and then provide me with full transparency into what information is collected, and full agency over where else that information is transmitted, then yes, let us definitely engage in a contract. But the former destroys pageviews (a poor proxy for engagement anyway), and the latter will erode the massive grey-market in user-data and targeted advertising. From where I'm sitting, I don't think it's in publishers' best interests to shine a bright light on the current publisher/reader relationship.
However, as history shows, entrenched institutions have plenty of influence (cash) to transform a beneficial-to-them status-quo into "the law", e.g. when DVRs came out and programmatic commercial skipping was deemed to be illegal: https://en.wikipedia.org/wiki/Commercial_skipping
First, it is not clear if a web "surfer" is in a contractual relationship with a random site s/he visits in a way that a Blizzard gamer is (by the virtue of buying the game and clicking through the TOS).
Second, Blizzard game bots use a part of the company's codebase, where the ad blocker works solely in my own browser. They do not rely on proprietary code that belongs to someone else.
Finally, where the Blizzard bot is made with the single purpose of violating Blizzard's TOS, the ad blocker has many legitimate uses, outside of any aggrieved party. By this token, could we not go after Oracle or Mozilla for facilitating the breach of contract in maintaining JavaScript (a language then used to break the contract)?
The thing you would go after would be the adblockers for facilitating breach of contract.
I don't see how you could ever get to "a language then used to break the contract", nor is this a logical argument. Ie if you are using it to try to demonstrate some kind of absurdity, it doesn't work to do that.
Facilitating breach is also not a thing, the closest thing is known as "tortious interference". Pretty much everywhere, it must be knowing and intentional (In the sense that you know it breaches that contract and are aiming it at breaching that contract). There are a small number of jurisdictions that allow negligence claims, but those jurisdictions are crazy.
> By this token, could we not go after Oracle or Mozilla for facilitating the breach of contract in maintaining JavaScript (a language then used to break the contract)?
Excellent point, I think what we may see is that adblocker are perfectly legal, but those lists of ad sites to block, not so much.
Ad blockers with tor, bittorrent and rss capabilities coming soon may be headed our way soon.
Without a license, there's nothing giving you the right to visit a website, because the copyright law says so. Legally speaking, you either agree to whatever license the website has in place, or you've got no right to view its content.
Of course, such a license cannot have provisions that conflict with copyright or contract law and so doctrines like the fair use applies, etc.
Of course, you could say that you can't read any license, or any privacy policy and you can't observe any unwanted behavior without first loading that website. But then again, people could build and use an extension that blocks websites and warns people of unwanted characteristics. But that's not what people are doing.
> Second, Blizzard game bots use a part of the company's codebase, where the ad blocker works solely in my own browser. They do not rely on proprietary code that belongs to someone else.
That's a weak argument. Blizzard games do not run directly over hardware, but on top of an operating system that exposes high level APIs, such as DirectX or OpenGL, being in many ways just as high-level as the browser is.
>>Without a license, there's nothing giving you the right to visit a website, because the copyright law says so.
Is there any case law to back that up? That's a very odd reading of copyright law. Would you make the same claim about listening to a radio, viewing a television broadcast, or reading a poster?
I do enter into an agreement when i go to a theater to watch a movie - I have paid for a ticket to a specific movie, consented to the business' rules (who in turn had to agree to the creators rules), etc.
On the other hand, when i view a billboard, i have entered into no such agreement. I just moved my eyes and there it was - i consented to nothing, i purchased nothing, i am under no obligation to take any action or to behave within certain defined parameters.
Since a website is made publicly viewable, it is not at all like a movie, it is instead like a billboard.
I enter no contract when i move my gaze onto a public resource (be it digitally or physically).
Or should I start putting up billboards with cameras tracking license plates and MPH, with fine print saying you agree to be physically tracked using my billboards and allowing me to send all collected information to the police and advertisers?
And then when you block my camera, i will sue you for breaking the TOS of my billboard, that you consented to by seeing the billboard.
Website terms of service are not viewable until you have already accessed the web site. Unless the web sites give users an interstitial page wherein they explicitly click a button to agree to the terms of service before proceeding, then they would otherwise fall under Browse Wrap[1], for which most existing legal precedence favors the consumer rather than the web site.
This isn't quite right.
It varies, but in general, if you continue to use the site, knowing such a TOS exists, you may be bound by it (you may not, it depends on the terms, etc).
You would get a pass on "the first time you accessed the web site", not "every time you did it afterwards knowing there was a TOS".
This all assumes you noticed it exists. There is another question of "can i be bound by the TOS if i didn't ever know it existed" vs "can i be bound by a TOS if i didn't bother to read and assent to the terms explicitly". The answer to the first is "mostly no" the answer to the second is "mostly yes" (but again, depends on the terms of the TOS).
This is what actual precedent is, anyway ;)
The next question that gets asked is basically "what if i just lie and said i never noticed it, what do they have to prove", and the answer is "if you are willing to lie, this is a worthless discussion to have".
If the article seeks to attack the adblocking system itself, then I would press that the most important utility of adblockers is that they block dangerous elements on sites that the user has no history with or knowledge of.
I feel perfectly comfortable browsing HN with my adblocker turned off, but I would want it turned on for 75% of the links I click from here.
Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer).
Additionally they mostly regard actions taken on the web site, such as downloading software or purchasing products. Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that.
"Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer).
"
This is an editorialization by wikipedia (sadly).
If you read the actual cases, you'll see they hinge on the standard contract stuff.
IE
"(1) Did the user have either actual or constructive
notice
and
(2) Did the user assent"
What it takes to do this is pretty much 100% unclear overall, and wikipedia stating otherwise is just plain wrong..
Both of these can be constructive/implied/etc, and are going to be what gets argued about in front of a judge. The difference you see in caselaw is just differences between what judges felt which was really fair.
You can find plenty of cases with only slightly different situations.
"Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that."
Ye. Facebook's TOS, for example, has been enforced multiple times.
See, e.g, E.K.D. v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012).
and
Fteja v. Facebook 2012 WL 183896 (SDNY 2012)
The only agreement you find there is it's conspicuous that they add the words "and you are indicating you have read and agree to the terms of service" in various places.
So if that continues to be held enforceable, you'll probably see folks do that, and problem solved.
The rest of caselaw is still a mismash. For every example you can find a counterexample.
Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. Lexis 6483 (C.D. CA., March 7, 2003) (held bound to TOS just from browsing)
vs
In re Zappos.com, Inc. Customer Data Security Breach Litigation, 893 F.Supp. 2d 1058 (Dist. Ct. Nevada 2012). (TOS was not conspicuous enough)
vs
Hubbert v. Dell Corp., 2005 WL 1968774 (Ill. App. Ct. 2005) (court upheld arbitration clause in Dell’s for cause regarding alleged false claims made by Dell to online purchasers of the computers. Court found different colored hyperlinks on each page like a multipage contract)
etc
So i return to my original statement: Most of the court cases seem to depend more on what relief is being sought and what the TOS says more than what happened and where it was. They shouldn't, but they are :)
Forum selection clauses, for example, that nobody likely read, have the carnival cruise precedent from SCOTUS (TL;DR forum selection clause on back of printed ticket that nobody ever saw until after they purchased is binding)
However, all cases i've seen where the user was told "and you agree, explicitly, to the terms of the TOS" somewhere mildly conspicuous, came out in favor of the TOS holder, even when no explicit assent was given through clicking, etc.
If your bank sends you a credit card contract and you don't sign it but their broken system lets you use their service anyway, are you liable for the terms of that contract?
Can we make a "User TOS" standard wherein a link to a user's personal Terms of Service is embedded in, say, a "User-TOS" GET header, which could include terms implying that by continuing to serve content to the user the web site accepts the user's terms?
Preferably the TOS would include verbiage to continue blocking ads, to forbid the use of tracking cookies, and other such pro-consumer terms.
There's always Platform for Privacy Preferences[0], which is kind of what you suggest, but specifically in the context of where the TOS/site policy talks about user identity/information. It ultimately ended up being more of a thorn in the side of server operators because, IMO, of the way Microsoft implemented the UI in IE's preferences (and that few other browsers actually honored it).
That doesn't sound quite right to me, as it's pitched as a system for web sites to implement individually to try to standardize user privacy systems. My suggestion is more along the lines of how a web site TOS works right now: it's going to be different for everyone, but it's accessible to the target and by continuing to serve content they implicitly agree to it and therefore are legally bound by it.
If we're expected to read and agree to every single web site's TOS or face the consequences, it's only fair if the reverse is also true.
Ideally that could be included in the User TOS. Think of it like the Creative Commons model, a lot of standardized information is contained in the string "CC-BY-NC-SA", even though it's been customized for a particular person's use case.
In this instance, you could have TOS-NA-NC, where NA is "No App" and NC is "No Tracking Cookie".
If it's illegal for me to choose which network requests my computer makes and/or accepts, or illegal for someone to create software to help me do that, I think that law is ludicrous and I want it to be changed.
I've been saying the same since the WoWGlider case - they basically just made a program to give users full control over software running on their own computers. Sure, control which violated a license, but can you really write a license to take control over something someone else owns outright? If they loaned you the computer, they might have an argument, but if you own it, it seems insane.
It is ludicrous that you can't control execution on your own CPU without their permission or even simply peek and poke a byte in your own RAM... I own my hardware and I exert my rights to it every chance I get, but I break the law often in doing so. Whether it's flipping a bit to bypass that anti-VM protection, play a game with 3rd party mods needed to make it work on modern hardware or use the full capabilities of the phone I own outright. These things are all blatantly against copyright law in one or many ways, yet I engage in them daily.
Ludicrous may actually be a generous way to put it.
The advertising model is, among other things, transforming the once vibrant internet media landscape into a cesspool of floundering and money losing companies chasing clicks and eyeballs in a desperate race to the bottom. Interesting and unique content is jettisoned for the most banal, formulaic click-baiting bullshit imaginable. The sooner the ad supported internet dies, the better.
I have no problem paying for access to quality content and am more than wiling to pay for more of it. But if my only is option consists of being inundated with annoying and intrusive ads at every turn, I will block them at every turn and feel not a pang of guilt and regret.
It's a bit rich for organizations that promote self-interest and free markets to harangue their customers with lectures on the immorality of ad blocking. I am acting out of self-interest when I choose to block ads and the market should have gotten the hint by now that the public (i.e., customers or potential customers) put with ads as a necessary evil - at the best of times. This is not the best of times: internet ads are intrusive, hog resources, are served by dodgy outfits, present security risks, are an eyesore, and often flog stuff that I will never ever buy. Therefore, I block ads q
Come on , is this pitiful whining about the evils of ad blocking really coming from the same is w tech industry that touts adaptability, innovation and the willingness to try new things as core strengths? The market has spoken and it has said loudly and clearly "ads suck, dude!" Therefor, I actively and with not even a pang of guilt, block ads. On both by mobile devices and big computer I use open source host file tweaks rather than a "commercial" plugins (Adblock, AdBlock Plus). Way less bloat, more robust and no backroom deals selling whitelist space to advertisers.
Jaron Lanier has been widely criticized, even ridiculed, for his, admittedly convoluted, micropayment system concepts but at least he's thinking about the possibilities. Because the ad serving model is doomed to a slow death by ever diminishing returns. Now is the time to innovate.
Last word goes to Lanier and his succinct take on the, heh, bad taste left by an ad driven world: “Funding a civilization through advertising is like trying to get nutrition by connecting a tube from one’s anus to one’s mouth.”
If a site's terms of service said that access with IE was not allowed, and someone used IE to access the site, could the site sue Microsoft? What about if IE was installed by someone else, are they interfering with the site's contract?
So, it's very funny to look at some of the reactions here.
For a group of people who seem to also think they would be great at self-study law ;P, most of them are mostly knee-jerk and come out to "i don't think i should be bound by this, so clearly the law says what i think" or "i think this is a bad idea, so clearly, the article is wrong", instead of making arguments based on actual law and precedent, or even something sane.
There is one important difference with comparing MDY to adblock though. MDY made software specifically for WoW. Adblock does not make software specifically to target Business Insider or anyone else.
Further, if this precedent was set, you could possibly go after people using out of date browsers that can't display your ad content perfectly or viewing text only or a million other ways in which ads wouldn't be left in their pristine state.
Yes, but you could probably make a case for sending DMCA takedowns to the chromium repo because someone doesn't like that the old versions "circumvent" the ads at which point the ball is in their court. If they fail to take action, they now have knowledge and potentially "intent"
Adblockers have specific rules for specific websites. In fact, adblock plus even has a special rule set to bypass blocks set up by websites to stop adblock users.
The url's in the lists are (mostly) ad companies though. It just doesn't send the http requests to url's on the list. I could set up a website out of the blue and have it serve ads that would be successfully blocked by any adblock on day one without it knowing about my site specifically
Just a moment, is the argument stating that an implicit contract (that is, the Terms of Service) which I was not required to accept to browse the website, can make using an Ad Blocker illegal?
What about: malware distributed through ad networks, offensive advertisements (the original reason I installed an ad blocker!), and so many advertisements that a midrange spec'd machine staggers when scrolling or navigating?
By browsing the website, the argument is that you implicitly accepted the ToS. It's legally shaky, and generally the ToS or a link to them must have been provably shown to the user.
In a court case for hacking, Zappos tried to invoke their browse wrap ToS clause for arbitration, which the court struck down. It was unenforceable for these reasons:
• Zappos placed a link to its Terms of Use between the middle and bottom of each page, only visible if a user scrolls down.
• If the Zappos.com homepage is printed to hard copy, the link appears on page 3 of 4.
• The Terms of Use link was the same size, font, and color as most other non-significant links.
• The website did not direct a user to the Terms of Use when creating an account, logging into an existing account, or making a purchase.
This describes Terms of Use links for virtually all sites, even today. I'd say that this makes browse wrap very shaky, legally.
On the one hand, it's not reasonable to treat "blocking" as the problem that needs a law. Sanity-preservation aside, when ISPs can charge people through the nose for the amount of data being used, some form of blocking software IS REQUIRED. (If sites stop auto-running full-screen video ads with sound, or ISPs stop being complete thugs, then we can talk.)
On the other hand, to the extent that people are more willing to pay ad-blocking companies than the web sites that provide content, I think something needs to change. Ad-blocking companies seem to earn a lot of revenue, disproportionate to their value-add. Compared to all the complex products in the world trying to make a buck, the DOM analyzers and regex lists in ad-blockers are hardly ground-breaking things worthy of massive income. They benefit primarily from having a huge audience.
I've commented before[1] on how protocols might cage data use and scripting in a reasonable way.
Do you not have to 'accept' the TOS prior to using a Blizzard bot? I am not told to accept (or even view) the Business Insider's TOS prior to use.
IANAL, both it's obvious that parties must agree for a contract to be valid. It can not be implied. I can not hang a mortgage contract on my wall in the bank and bypass the need for individual acceptance.
All this absurd hand-wringing about adblockers would be very easily addressed if content providers would, collectively just offer paid subscription options. Say, a Spotify Premium for the written word.
I don't like ads, and I'm willing to pay to not see them. But nobody seems to want to take my money.
The problem with that model is that there are too many competing companies. As it is, you have to subscribe to half a dozen online publications if you don't want to hit a paywall for every other link posted to HN.
But even if there were a single service to manage those subscriptions, I would lament the monopoly.
Honestly, I think ads are the solution, but only if they drop all the anti-consumer BS associated with them.
That's an emotional response IMHO. I'm not a lawyer, but I think the outcome of this is predictable.
For applications and games it is illegal to circumvent DRM protections meant to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution in the EU. In the USA it's also illegal, although jail-breaking general-purpose computing devices is legal since 2015.
In general usage of software is covered by EULA terms that are not negotiable and enforced by copyright law. If you don't like the EULA, then you can choose to not use the software in question. Of course an EULA cannot override copyright or contract law. Plus many companies claim that software licensing is not a sale, hence the first-sale doctrine does not apply. The EULA for Microsoft Windows famously says that Windows is licensed and not sold. But overall, in order to use a piece of software you have to respect both the EULA it is distributed under and copyright law. Because without that EULA there's nothing giving you the right to use said software, because the copyright law says so.
In other words, while you may be justified in saying that the user should choose what to run on his computer, modifying an app or a web interface to load just what you want and discard anything else is probably copyright infringement. And even if it's not, though I doubt it, then this can be solved with a simple piece of code that blocks browsers with ad-blockers, in which case blocking such pieces of code from running is definitely illegal.
Couldn't the same argument be used for the blizzard bot? One is more intentionally telling users to break the TOS, but at the end of the day the user is running the code.
And the remedy is the same in both cases: if the provider really doesn't want people using clients that do certain things, the provider needs to control access so that only clients that don't do those things can access their server.
In the case of Blizzard, this would mean forcing gamers to run clients that were known by Blizzard to not contain bots; for example, Blizzard could force users to use signed client binaries. Blizzard might actually be able to get away with this because their users are paying customers who really, really want to play their game.
In the case of a website running ads, this would mean forcing viewers to run clients that were known by the website to not contain ad blockers; for example, the website could force viewers to run signed browser binaries. Of course, no site that runs ads will try this, because it would just mean nobody would view their site. Notice that sites whose users actually need to go there to do business, such as banking sites or Amazon, don't complain about ad blockers. It's only sites whose business model depends on ads that do. That should be a "here's your sign" moment to ad-supported sites that their business model is not sustainable. It should not be an excuse to sue ad blockers.
I'm of the mindset that most people actually like advertising when the advertisements are highly relevant and not in-your-face.
My first job was at a movie theater and we lined the wall with movie posters of the movies coming out. People just walked over to them and checked them out to see if there was anything of interest coming out in the next few months.
One of the activities in the city I live in now is a movies in the park which is sponsored by some local company. They show a quick 2 minute ad or something and mention that the company sponsored the activity. I wouldn't ever pay to go watch the movie, and am always glad that the sponsoring company essentially paid for me.
It is unfortunate that most modern advertisements online don't try to take a similar approach and show highly relevant ads or just sponsor something they want to exist.
I run a site which is 100% ad-supported, so I'm obviously biased.
> I'm of the mindset that most people actually like advertising when the advertisements are highly relevant and not in-your-face.
I may be an outlier, but I have never gotten any useful information from ads, so I have never had an ad be "highly relevant" for me. Also, to me, any ad in my field of view is "in your face", because it takes mental effort even to filter it out.
> I wouldn't ever pay to go watch the movie
Do you buy any of the products of the company that sponsors the movies?
The site I run displays photos of office interior design and the ads are relevant in that they are photos of products related to office interior design (chairs, desks, lounge furniture...)
One interesting case was a recent ad for a new phone booth product for offices which is generally relevant to my readers, but also specifically relevant because of the current huge desire for private and quiet space in modern open office environments. That ad has performed much, much higher than average.
Regarding the movies thing, no I haven't purchased any products from the sponsoring companies, but I am glad that they paid for me to attend the event in the same way I would be glad if my friend paid for me to attend an event.
You have no idea how cheating in games works. They dont touch the exe, they touch the memory. You can not stop game hacks with any first strike system, Its 100% reaction based, like anti virus software.
> You have no idea how cheating in games works. They dont touch the exe, they touch the memory.
Well, that would certainly make it harder for Blizzard to stop cheating. But not impossible; they would just need to require clients to have locked down memory. That is probably impractical (for example, it might well mean they would have to sell their own locked down client devices), but it's not impossible.
> You can not stop game hacks with any first strike system
Sure you can. But the system might not be practical.
Ad blocking is not a necessarily a browser-based thing. Even if they were to mandate a blocker-free browser, you could block ads with a firewall, by running your own DNS, or through the HOSTS file.
> you could block ads with a firewall, by running your own DNS, or through the HOSTS file.
Yes, you could, but I doubt that the number of people who have both the knowledge and the motivation to do so, instead of just loading a browser extension, is significant. In any case, my point was that just trying to lock down the browser (let alone trying to lock down firewalls, DNS, etc.) is a nonstarter for companies who want to force people to see their ads; the users' reaction will just be to go to another site.
No really. Bot was executed on user's machine, but effects of bot work were reaching well beyond user's machine, destroying economics of game, user experience and company profits.
Yes, the ToS restricting how the user uses the software should not exist in the first place. Keeping control of your computing is the core idea of free software.
Except the bot is causing things to be written to the server. The ad blocker is only blocking requests from happening (and those requests occur on the client side, in JavaScript). It's not blocking the transmission from the server's end at all, it's only stopping an event from happening locally.
How about publishers start spending more on R&D and less on useless law suits. Ditch the whole ad-network/ ad-exchange model and start offering native ads. Ads that are deeply embedded in content. Sure they would have to hire more designers and content writers to come up with these ads more frequently but it might be the right and/or only alteration of business model publishers have to opt for. Partnering up with third party businesses directly and ditching the useless middle man (aka ad exchanges) would be better.
You can argue advertising companies are breaking the law as well. (Privacy, malware distribution, ads for gambling, no clear sepration between ads and content...)
But the WoW bot was interacting with Blizzards servers and sending changeable actions that could affect the state of their servers. It feels like there's much more to this then a simple TOS.
Different Adblockers work in different ways, some block based on size/shape of images (IAB standards) but the most prevalent method is regex'd URL identification to known ad+tracking sites.
True, but the sites it's working against aren't the content providers, just the advertisers. As such, it's not intending to help you violate anyone's TOS in particular (except maybe and advertiser).
It was a local app, not remote. Even if I concende that it was remote, what about a wallhack for counterstrike? Should that be legal since it has zero server effect?
If you write a huge javascript library and started selling it, then someone stole it and released it for free- you would issue a DMCA because you own that code. Just because its HTML doesnt make it 'not free'
If publishers want to be explicit about forcing me to read/tldr and acknowledge a terms & conditions document, and then provide me with full transparency into what information is collected, and full agency over where else that information is transmitted, then yes, let us definitely engage in a contract. But the former destroys pageviews (a poor proxy for engagement anyway), and the latter will erode the massive grey-market in user-data and targeted advertising. From where I'm sitting, I don't think it's in publishers' best interests to shine a bright light on the current publisher/reader relationship.
However, as history shows, entrenched institutions have plenty of influence (cash) to transform a beneficial-to-them status-quo into "the law", e.g. when DVRs came out and programmatic commercial skipping was deemed to be illegal: https://en.wikipedia.org/wiki/Commercial_skipping
Now might be a good time for some of us to donate to the EFF https://supporters.eff.org/donate