Recently launched web browser Brave promises to simultaneously block ads, sell its own, protect user privacy and provide a revenue stream for publishers, users and itself, but US newspaper publishers are not happy.
A group of 17 US publishers which collectively represents more than 1200 newspapers have branded the business model as blatantly illegal.
The group of publishers, which includes the New York Times Company, Washington Post, Dow Jones, Gannett and Tribune, are members of the Newspaper Association of America and co-signed a letter addressed to Brave Software CEO Brendan Eich who co-founded the Mozilla Project.
The letter outlines how Brave violates publishers’ rights to protect their trademarks and copyrighted content.
Users of the open-source browser can opt to either leave ads in place, block all ads, or have ads replaced by those the company sells itself, which allows them to participate in its ad revenue sharing scheme.
Under the scheme, 55 per cent of revenue from ads Brave sells goes to the publisher of websites and 15 per cent each goes to Brave, its ad partners and the user of the browser itself.
Users who have ads replaced can choose to either donate their 15 per cent cut to the publishers of their choice via a micropayments system, or keep the revenue.
However the 17 publishers have flatly rejected to participate in this business model and said they are ready to enforce all legal rights to protect their trademarks and copyrighted content.
“Your plan to use our content to sell your advertising is indistinguishable from a plan to steal our content to publish on your own website”
“Your plan to use our content to sell your advertising is indistinguishable from a plan to steal our content to publish on your own website,” their co-signed letter reads.
“We expressly decline to participate in any way in Brave’s supposed business model. We explicitly reject any compensation or consideration Brave plans to offer to us as part of its ad-blocking and ad-replacing scheme, and we refuse to accept any “site wallet” that you propose to create for our supposed benefit.”
Like many ad blocking companies, Brave positions itself as a company that respects and protects user privacy and provides a solution to the intrusive state of online advertising through preventing tracking, and selling only what it deems as acceptable ads.
Brave hit back at the US publishers saying its does not tamper with first party publisher content and its revenue sharing scheme would provide publishers a greater share than most websites typically get from third party ads.
Brave also rejected the assertion that its browser republished content.
“If it were the case that Brave’s browsers perform “republication”, then so too does Safari’s Reader mode. The same goes for any browser with an ad-blocker extension installed, or the Links text-only browser, or screen readers for the visually impaired,” Brave said in a blog post.
For Veronica Scott, a special counsel at Minter Ellison, Brave is one of those cases “where the law is playing catch up with the internet”.
“What you have is a web browser unilaterally replacing ad content that a website owner has authorised on its site which the browser makes available to the user and earning revenue from doing so,” she said.
“It’s not simply blocking third party ads. This is like posting a billboard or notice on the side of someone’s property without the owner’s permission. One of the challenges we find a lot in relation to questions around responsibility for publication and authorisation on the internet is how do you define the particular conduct and activities of the relevant internet players – such as an internet service provider, or a website operator – that gives rise to a claim and remedy.”
“This is like posting a billboard or notice on the side of someone’s property without the owner’s permission” – Veronica Scott
Ms Scott said the issues the dispute raises bears similarity to those in the Australian case brought by the makers of 2013 film Dallas Buyers Club to try and force an ISP, iiNet, to hand over the details of its customers who were the owners of IP addresses from which they were allegedly illegally sharing downloads of the film.
“A central question again was what role did the ISP play in the downloading of that content? It’s the same in this case – what role does the browser play in controlling, blocking and replacing authorised advertising content that would otherwise appear on the publishers’ websites and from which they earn revenue,” she said.
Ms Scott said it would be difficult for Australian publishers to pursue potential legal action against Brave given it’s a US company.
However she suggested that the publishers could argue similar causes of action here. These include breach of the website terms and conditions or inducing a breach of contract by the website owner with the third party advertiser.
In a copyright context the publishers could also argue that Brave shouldn’t have an any special protection just because it is a browser.
“In (Australian) defamation law for example, there’s different degrees of responsibility depending on the what role the internet intermediary has played. Courts here have been prepared to consider that Google is a publisher of results of its search engine, while Google argued that they were simply automated.”
The reluctance of US publishers to play ball with Brave’s ad revenue scheme is not surprising.
A number of ad blocking companies offer to whitelist sites in exchange for hefty fees. The Interactive Advertising Bureau in the US recently said accepting this type of offer had direct risks for the industry as a whole.
Randall Rothenberg, president and chief executive of the IAB, took aim at Brave and ad blockers more generally in his opening keynote at the 2016 IAB Annual Leadership Meeting in January.
“The ad-block profiteers are building for-profit companies whose business models are premised on impeding the movement of commercial, political, and public-service communication between and among producers and consumers,” Mr Rothenberg said.
“They offer to lift their toll gates for those wealthy enough to pay them off, or who submit to their demands that they constrict their freedom of speech to fit the shackles of their revenue schemes.”
In its response to the publishers’ letter, Brave said it was happy to sit down with the Newspaper Association of America to discuss how it can be a “win-win for our users and the publishers they browsers”.
It also said the browser is the solution, not the problem for users and publishers alike.
“We provide speed, privacy, protection from malware, and a new, anonymous payment model that helps the whole industry and publishers in particular, compared to the status quo,” Brave said.
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