A Copyright Claim Was Reportedly Used to Stop Ad Blocking, But It's Complicated

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A certain portion of the internet is freaking out over a change to an important list used by ad blockers that facilitates their function. Popular coding repository GitHub received a DMCA request (the same tool copyright holders use to remove links to pirated music and movies online) to remove a domain name from the ad blocking list and consented. That set off a firestorm of speculation about copyright laws being used to prevent ad blocking. But that’s not exactly what’s going on here.

In a blog post, AdGuard—which claims to be “the world’s most advanced ad blocker”—first drew widespread attention to this particular case. The blog explains that EasyList, the most popular list of domain names used by adblockers, removed the domain name “functionalclam.com” due to a DMCA removal request that was sent to GitHub. But the Digital Millennium Copyright Act only protects copyrighted works like movies and music, not domain names, right? Not exactly.

First of all, ad blockers work by filtering out servers that deliver ads to the page you’re viewing. So, if an ad network delivers ads through “functionalclam.com” to the home page of The New York Times, that domain goes on a list and gets filtered by the ad blocker. Most ad blocking software is configurable by the user, and anyone can whitelist a site they support or blacklist a site that isn’t on the default list.

A message on the domain in question explains that the site is “used by digital publishers to control access to copyrighted content in accordance with the DMCA and understand how visitors are accessing their copyrighted content.” The domain is controlled by a company called Admiral which issued a statement on Friday in response to the furor. The explanation is really not very helpful in clarifying what legal grounds they believe they are standing on with this DMCA request, and it’s equally confusing when it tries to explain what Admiral does for clients. Admiral’s CEO Dan Rua writes “That domain is part of the DMCA copyright access control platform Admiral provides publishers so they can engage visitors in a transparent way on the value exchange for their copyrighted content, instead of resorting to surprise ad reinsertion the way some of our competitors advocate but visitors and advertisers dislike.”

Gizmodo reached out to Rua to get some clarification on what exactly he’s saying his company does and why the request was made. We asked Rua, “Are you saying you’re in charge of the messages that pop-up and insist that people whitelist a site if they want to read the content?” He responded, “Yes.” Then he explained they offer a variety of services that are “highly configurable,” “engage users,” “maximize user experience,” and so on, ad nauseam. In a certain light, the man’s commitment to speaking marketing buzzword nonsense is genuinely remarkable.

Rua’s initial confirmation, however, is what’s important here: Admiral is in charge of those pop-ups that ask you to white list or pay for a website. And there’s nothing wrong with that. But when Rua claims that blocking a domain name circumvents “a publisher’s paywall or copyright access control technology is not OK and we don’t believe it’s core to the mission of AdBlock Plus and EasyList,” things get a little stickier. If one of his clients will no longer have a paywall on their website because an external domain is blocked, that sounds more like Rua’s problem than the user’s.

In support of Admiral’s takedown notice, Rua pointed to section 12 of the DMCA, which is mostly about digital rights management (DRM) and encryption. Admiral’s apparent argument is that blocking its domain qualifies as an attempt to “circumvent a technological measure” that protects copyright.

When we asked Rua if his company just injects a JavaScript pop-up on its client’s websites, he ignored the question, but he outlined section 17USC1201 of the DMCA which states: “to ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (The bolding is his.)

What’s funny about all of this is that one of the administrators of EasyList acknowledged on GitHub that “If [the domain] is a Circumvention/Adblock-Warning adhost, it should be removed from Easylist even without the need for a DMCA request.” Apparently, the domain is exactly that. But a whole other can of worms has been opened by Dan Rua and Admiral. By strong-arming these developers with a DMCA, they’ve stirred questions about what constitutes DRM. Can a company tell you specifically that you’re not allowed to block a domain in your browser? All we know is that Admiral’s move has only encouraged users to list out more domains of ad-blocker-blockers.