Adblocking in Court: Napster All Over Again
The IAB last year made it clear that lawsuits were still very much on the table as a potential measure to fight adblocking. Publishers in Germany have repeatedly brought the makers of Adblock Plus to court, losing another case just a few weeks ago. A recent survey of high traffic websites has indicated significant support for collective legal action, while the Brave browser earlier this month received a rather bellicose cease-and-desist letter from leading publishers in the US.
It seems almost inevitable that everyone is going to end up in court.
While we sympathize with publishers and understand why they would turn to legal action, we think this approach is a costly and time-consuming mistake that could ultimately lead to the downfall of the publishing industry.
Fifteen years ago, Napster was effectively hamstrung by a Californian court and eventually bankrupted, but file sharing never stopped and the court cases continued. Grokster, Morpheus, Kazaa, isoHunt and The Pirate Bay were just some of the names targeted in the intervening years by lawyers for the RIAA or MPAA. Many of these services are now gone, but some argue that file sharing is actually growing. The legal costs can only be counted in the millions, with even those involved characterizing the crusade as a money pit.
Napster played a dangerous game with the music industry and lost, but the music industry lost even more. Mired in legal battles, it lost the chance to engage with Napster’s over 50 million music fans. In fact, it ended up taking thousands of them to court as well, with some ignominious cases dragging on for years. It also lost an opportunity to capitalize on a vision of the future in which, as Sean Parker predicted in 1999, “music will be ubiquitous… you’ll be able to get it on your cell phone”[1. Quote from Downloaded]. While the music industry was distracted, Apple stepped in and deftly positioned iTunes as the de facto distribution network for music worldwide, forcing the music labels to accept tough terms and pricing.
Streaming services such as Spotify may now be nipping at Apple’s heels, but the recording industry is effectively relegated to just producing content and is unlikely to ever regain the power it once enjoyed before it chose to attack rather than embrace the digital distribution of music. The chart on the right from The Economist shows that the music industry took more than a decade before even starting to recover.
In a tragic missed opportunity, the music industry only ended up alienating its own fans. In the words of John Perry Barlow, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation:[2. Quote from Downloaded]
You don’t get your market to like you by suing the shit out of them. I mean what they’ve done is to, is to turn an entire generation of kids into electronic hezbollah. Who hate them for ideological reasons. I mean I know a lot of people that, that won’t buy music, period. Because they don’t want to enrich those people. And they didn’t have to have it like that. John Perry Barlow
Adblocking is not the same as peer-to-peer file sharing but it is a clear signal that a large number of internet users are unhappy with online advertising, in the same way that Napster’s explosive growth in popularity showed that its users wanted the music business to change with the times.
Napster was an obvious target. Taking down Eyeo or the likes of the Brave browser may be less meaningful. There are already many alternative adblockers and privacy tools available and the lists used to determine what to block are at least ostensibly community maintained. Trying to stamp out adblocking by legal means could be a futile game of legal whack-a-mole that distracts publishers for years.
Publishers should note the example of Napster and also be aware that Apple is again waiting in the wings, along with Facebook, in the form of Apple News and Facebook Instant Articles. Fighting expensive, lengthy legal battles against adblocking, the publishing industry could well decide that it has a lot to gain from outsourcing the problem of distribution to a third party. We’ve already written about what we think this would mean for publishers. Ending up as simply a content producer with no independent platform or editorial freedom is hardly a victory.
The rise of adblocking needs to be treated as an early warning signal that users are being choked by a glut of annoying but also intrusive advertising . There’s no need for an external villain such as Eyeo or Brave when it comes to adblocking, because legal action against adblockers is not going to solve the problem.
Publishers and advertisers have the power to do that themselves, without wasting time and money on legal fees. Better, more respectful and less intrusive advertising and an understanding that adblockers represent an important marketing opportunity is the only way that publishing will escape from this situation without making an unacceptable sacrifice.
Last month, PageFair held a global stakeholders roundtable to consider the form that advertising should take in a world of adblocking. Senior stakeholders, including consumer groups, advertisers, publishers, and browsers, came up with Four Points that clearly show a path out of the adblocking problem without resorting to the courts.
Consumers are using adblocking to express dissatisfaction with the way things are. Instead of trying to find legal means to wrest that control away from their own audience, the industry needs to engage with it, to freely give the user tools to reject and complain about advertising.
Online advertising has gone too far below the line in the battle for eyeballs and clicks. PageFair technology can restore advertising to adblockers, and stakeholders appear to agree believe that in doing so we should display only a limited number of premium advertising slots.
Some users are worried about their privacy. The use of contextual targeting to establish ad relevance has the power to free advertisers from obsessive chasing of the chimera of perfect user targeting and also adds more value to publisher brands.
Finally, stakeholders believe that better metrics of advertising success are needed. Advertisers need to focus less on clicks and impressions and instead try to find more realistic metrics that cannot be tricked by bots and would incentivize procurement departments within brands to focus on value over cheapness.
Instead of wandering into the same kind of legal quagmire that led the big names in the music industry to lose control over their own content, publishers should instead work with advertisers to bring about a new age of online advertising that makes adblocking irrelevant and allows the impending “epidemic” of adblocking to gently fade into history before it even begins.