Newspapers try to block Brave browser’s ad-substitution business model

As ad blockers try to monetize with their own ads, are they committing trademark or copyright infringement? Newspapers argue they are.

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As ad blocking continues to gain traction among users, it’s a growing concern for publishers — though not yet an existential threat. The IAB has blasted certain ad blockers as a kind of “protection racket.”

Echoing that criticism is the Newspaper Association of America (NAA). Signed by representatives of 17 publishers, representing 1,200 newspapers, the NAA issued a “cease and desist” letter (embedded below) to ad-blocking browser Brave.

The trade group objected to what it saw as an attempt to use newspaper content to sell “Brave network” ads that would then effectively be substituted for the newspaper companies’ own ads that had been blocked. Here’s an excerpt from the NAA letter:

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 public statements demonstrate clearly that you intend to harness and exploit the content of all the publishers on the Web to sell your own advertising . . .

We stand ready to enforce all legal rights to protect our trademarks and copyrighted content and to prevent you from deceiving consumers and unlawfully appropriating our work in the service of your business. Unauthorized republication of our copyrighted content to support Brave’s illegal advertising model violates protected rights of publishers under the Copyright Act and other laws.

Brave first launched in January of this year. It was developed by a team led by Brendan Eich, who co-founded Mozilla and created JavaScript. Brave has desktop and mobile versions for both iOS and Android. Brave’s advertising model is intended, according to the company, to be more privacy-friendly and secure for consumers.

The NAA letter signatories objected to Brave’s intended ad revenue-sharing plan and micropayments as token gestures that won’t compensate them for the cost of content creation. Brave responded to the NAA allegations in a post today.

The company makes a point-by-point refutation of the NAA charges. Audaciously, Brave also claims to be “the solution, not the problem, for users and publishers. 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.”

Indeed, the company sees itself as a better ad network, rather than a content pirate. But this is a matter of legal interpretation. And if there is litigation, which I suspect is coming, courts will determine whether ad blocking and associated ad-substitution are a kind of copyright or trademark infringement. This is the kind of thorny question that could generate multiple appeals and perhaps reach the US Supreme Court.

According to a recent consumer survey by Global Web Index, the top five reasons for consumer ad blocking are:

  1. Too many ads are annoying or irrelevant.
  2. Ads take up too much space and get in the way.
  3. I think there are too many ads on the internet.
  4. I find online ads intrusive.
  5. I want to speed up the time it takes for things to load on my mobile.

Millennials and high-income earners are the demographic segments most likely to use ad blockers according to comScore. A recent survey from Digital Content Next (the former Online Publishers Association) found that 33 percent of US consumers were “very likely or somewhat likely to try ad blocking software in the next three months.”

Various carrot-and-stick publisher approaches are emerging to deal with ad blocking. The IAB outlined them in a recent report, which assesses their risks and potential efficacy. However, there’s no one solution for the industry; it will need to employ a range of measures — both carrots and sticks — including making ads better and less disruptive for users.

Opinions expressed in this article are those of the guest author and not necessarily MarTech. Staff authors are listed here.

About the author

Greg Sterling
Greg Sterling is a Contributing Editor to Search Engine Land, a member of the programming team for SMX events and the VP, Market Insights at Uberall.

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