Germany: Copyright and ad blockers

Does a browser plug-in that suppresses advertisements on websites (a so-called “ad blocker”) by manipulating browser-generated data structures constitute an unauthorised modification of a computer program, and so amount to an infringement of copyright under Germany copyright law?

That is the central question in recent proceedings before the German Federal Court of Justice (BGH) (case No.: I ZR 131/23).

Background

The reported facts are that the plaintiff, Springer-Verlag (a media/publishing house), is suing the defendant, Eyeo/AdBlocker Plus, a provider of a browser plug-in that suppresses advertisements on websites.

Springer-Verlag argues that:

• The manipulation of browser-generated data structures by the ad blocker constitutes an unauthorised modification of a computer program, and therefore an infringement of copyright, under German copyright law (under section 69c No. 2 of the Act on Copyright and Related Rights, Urheberrechtsgesetz).
• Ad blockers alter the programming codes of websites, thus unlawfully interfering with the constitutionally-protected offerings of media companies. 
• The use of ad blockers is a threat to the financial foundation of journalism and to the open access to opinion-forming information on the internet. 
• The financial damage to media offerings is significant, and the societal damage to press and information freedom is even greater.

On the other hand, Eyeo/AdBlocker Plus, the provider of the ad blocker Adblock Plus, emphasises that:

• This case concerns the fundamental rights of users to freely use the internet, and to customise it to their needs. 
• No single company should have the right to prohibit users from setting their own browser settings or to prevent the download of content.

Impact of a recent ECJ case

Instead of making a final decision on the matters at issue, on 7 November 2024 the BGH (the First Civil Senate, chaired by Judge Thomas Koch) granted the parties time for further submissions. Rather than decide matters now, the court felt that the parties should be given time to comment on a ruling by the European Court of Justice (ECJ) in a similar case issued on 17 October 2024 (Case No.: C-159/23), which dealt with whether cheat software for the PlayStation Portable infringed copyright.

In that case, the ECJ ruled that cheat software that only temporarily alters data in a console’s memory does not automatically infringe copyright.

The ECJ decision could serve as a precedent for similar cases, as it defines the scope of protection for computer programs and clarifies that not every alteration of data structures constitutes an unauthorised modification.

It is not surprising, therefore, that the BGH in the Eyeo/AdBlocker Plus case was prepared to give the parties time to make submissions on the implications of the ECJ case.  The oral hearing will continue on 10 April 2025.

Some observations

The BGH’s decision in the Eyeo/AdBlocker Plus case could have far-reaching consequences for the digital advertising industry and website owners’ rights.

Critics fear that a decision in favour of the plaintiff could restrict users’ rights, who often use ad blockers to protect their privacy and improve their online experience. In the long term, this could lead to increased use of alternative advertising technologies that are less invasive and less disruptive to the user experience.

One possibility is that the BGH will take a similar view to the ECJ and rule in favour of the ad blocker provider, but other outcomes are possible and the online advertising industry (and its various stakeholders) awaits the outcome of the case with interest.