Brave put itself on a collision course with web publishers when it announced its ad-filtering web browser in January, so it should come as no surprise that a bevy of media companies have responded to last week’s launch with legal threats.
No fewer that seventeen web publishers, including the Washington Post, Gannett, and the Tribune company, have signed off on a letter which calls the browser’s built-in ad-blocking features ”blatantly illegal.”
Users have been blocking adverts in web browsers since long before Apple made content-filtering a core feature in iOS 9 last year, and there are even web browsers which offer ad-blocking as a built-in feature, but Brave takes the idea one step further.
This browser blocks adverts and replaces them with less-toxic ads sourced through a trusted ad network. The revenue generated by the ads is then split between the web publisher, Brave, and users, with the final group getting paid in Bitcoin.
Yesterday the media companies sent a letter to Brave, calling its browser illegal and describing the business model as copyright infringement. Brave responded with a public statement.
From Business Insider:
With Brave, publishers get around 55% of revenues: 15% go to Brave, 15% go to the partner that serves the ads, and 10% to 15% goes back to the user, who can choose to make bitcoin donations to their favorite publishers in order to get an ad-free experience on their websites, Eich told Business Insider in January.
But the 17 newspaper-publishing companies that cosigned the cease and desist letter sent to Eich on Thursday say that this business model is "blatantly illegal" because they claim Brave is profiting from the "$5 billion" a year the industry spends on funding journalism.
The publishers argue that Brave’s advertising-replacement plan would constitute copyright infringement, a violation of the publishers' terms of use, unfair competition, unauthorized access to their sites, and a breach of contract.
You can read more over on WSJ or Business Insider, and I have included both of the letters below.
But I wouldn’t read too much into the letter from the newspapers. It is less a threat of legal action than it is the first round of negotiations.
Or at least that is how things played out before. This whole incident is basically a repeat of the launch of Flipboard. That news aggregator app faced similar questions when it launched in July 2010, and so did its smaller competitor Zite.
Both Flipboard and the now-deceased Zite got their content by scraping websites and republishing the articles. That’s arguably copyright infringement, and in fact, Zite received a cease-and-desist letter in March 2011 over its site scraping because it was posting whole articles. According to coverage at the time, Flipboard managed to avoid the public nastygram by only showing excerpts, but some publishers still complained.
And yet, both Zite and Flipboard continued to operate right up until one was acquired by the other.
And Flipboard is still around today, so don’t count Brave out just yet.
O O O
Here’s the cease-and-desist letter sent to Brave:
Dear Mr. Eich:
Brave Software, Inc. (“Brave”), a company you founded, has announced that it intends to launch a browser and mobile applications that will display publishers’ content but replace publishers’ advertising with advertising that Brave sells for its own profit. You are hereby notified that Brave’s plan to replace our clients’ paid advertising content with its own advertising violates the law, and the undersigned publishers intend to fully enforce their rights.
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 can provide access to all of the top publishers through a single channel with guaranteed ‘share of voice,’” Brave’s website claims. “This combination of better targeting and first-look access to all of the premium placements our users browse is something that no one else can provide.” There’s a simple reason “no one else” is purporting to “provide” all the content on the Web in one place for its own profit, without investing a penny in creating that content: everyone else has recognized that it would be blatantly illegal for one company to hijack all the content on the Web for its own benefit.
We publish some of the most highly valued and widely read sites on the Web. Our sites and mobile applications provide news reporting, photojournalism, video content and feature writing that is researched, reported, edited, and produced at extraordinary cost. Our industry spends more than $5 billion per year on reporting in the United States alone. We distribute that reporting online for free or at highly subsidized rates, in no small part due to revenue from online ads.
Your apparent plan to permit your customers to make Bitcoin “donations” to us, and for you to donate to us some unspecified percentage of revenue you receive from the sale of your ads on our sites, cannot begin to compensate us for the loss of our ability to fund our work by displaying our own advertising. 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. In addition, you are not authorized to use our names, trademarks and logos in any way in connection with the promotion or operation of your business.
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. We reserve the right to seek all remedies for this infringement, including but not limited to statutory damages of up to $150,000 per work pursuant to 17 U.S.C. § 504. Brave’s use of publishers’ trademarks to sell its own advertising will confuse consumers, infringe upon publishers’ exclusive rights in their brands, and dilute our highly distinctive marks. We believe your planned activities will also constitute unfair competition and misappropriation under relevant federal, state and common law. Brave’s unauthorized activities involving our content and websites also violates our terms of use. By engaging in Brave’s plan of advertising replacement, Brave is liable for breach of contract, unauthorized access to our websites, unfair competition, and other causes of action.
Very truly yours,
O O O
And here’s is Brave’s response:
The NAA sent a letter to Brave Software that is filled with false assertions. The NAA has fundamentally misunderstood Brave. Brave is the solution, not the enemy.
The NAA’s letter to Brave Software asserts that any browser that blocks and replaces ads on the browser user’s device performs "unauthorized republication" of Web content. This is false on its face, since browsers do not "republish", serve, syndicate, or distribute content across the Internet or to any computer other than the one on which they run.
Browsers are the end-point for secure connections, the user agent that actually mediates and combines all the pieces of content, including third-party ads and first-party publisher news stories. Browsers can block, rearrange, mash-up and otherwise make use of any content from any source. If it were the case that Brave’s browsers perform "republication", then so too does Safari’s Reader mode, and the same goes for any ad-blocker-equipped browser, or the Links text-only browser, or screen readers for the visually impaired.
The NAA letter also falsely asserts that Brave will share an "unspecified percentage of revenue", when our revenue share pie chart has been public and fixed from our first preview release in January. We give the lion’s share (pun intended), up to 70% of ad revenue, to websites, keeping only 15% for ourselves and paying 15% to our users.
We sympathize with publishers concerned about the damage that pure ad blockers do to their ability to pay their bills via advertising revenue. However, this problem long pre-dates Brave. We categorically reject the claim that browsers perform "republication", and we repeat that Brave has a sound and systematic plan to financially reward publishers. We aim to outperform the invasive third-party ads that we block, with our better, fewer, and privacy-preserving ads.
Finally, we note that malvertisement has gotten onto the websites of the New York Times and the BBC recently through the ill-designed, unregulated, and poorly-delegated third-party advertising technology ecosystem. Truly, this tracker-based ad-tech ecosystem is what is damaging the brand value of content publishers and driving users to adopt ad-blocking software. Brave blocks and replaces only third-party ads and trackers. Our system thus actually repairs the damage that publishers have carelessly allowed their ad partners (and partners' partners, to the seventh degree of separation) do to their trademarked brands and names.
Make no mistake: this NAA letter is the first shot in a war on all ad-blockers, not just on Brave. Though the NAA never reached out to us, we would be happy to sit down with them for an opportunity to discuss how the Brave solution can be a win win. We will fight alongside all citizens of the Internet who deserve and demand a better deal than they are getting from today’s increasingly abusive approach to Web advertising.
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