Legal Analysis of the “Admiral” Anti-Adblocker DMCA Incident

The Story So Far

  1. A company called Admiral makes ad-blocker-blocker technology.

  2. This company argues that that ad-blocker-blocker-technology constitutes an “effective measure” to control access to a copyrighted work within the meaning of 17 USC 1201 (DMCA 1201, the chapter banning “anti-circumvention” technology).

  3. A domain name used by this company as part of its ad-blocker-blocker technology is added to Easylist, the default blacklist used by Adblock Plus. This list is hosted on GitHub.

  4. Admiral complains to GitHub using their DMCA complaint procedure.

  5. GitHub forwards the complaint to the Easylist maintainer.

  6. The Easylist maintainer agrees (under the implied threat of having the repository shut down) to remove the database entry from the repository, which is a single line naming a domain name.

  7. This becomes a news story and people start talking about it.

  8. Admiral defends its actions.

Other coverage: HN

The Law

How The Complaint Was Made

Interlude

Conclusions so far:

What if a counternotice was sent?

17 USC 512(c) provides for takedown notices, but also provides for counternotices. Essentially, if a user uploads content to a website and another party then sends a takedown notice pursuant to 17 USC 512(c), the website must take the content down promptly to retain their exemption from liability.

If the original uploader finds this notice to have been sent in error, however, they may send a counternotice to the website. The user must identify themselves in this counternotice and the counternotice thus constitutes a notice to the effect of “if you've got a problem with this, sue me, not the website”. After no less than 10 days (!) from receipt of the counternotice, the website may restore the content which was taken down.

As was made clear above, 17 USC 512(c) is inapplicable to this complaint, but GitHub has processed it as though it is a complaint pursuant to that section. Necessarily therefore, the counternotice provisions under 17 USC 512(c) are equally inapplicable — but one wonders what GitHub would do if it received an e. mail purporting to be a counternotice in just the same way that the original e. mail purported to be a takedown notice within the meaning of 17 USC 512(c).

On the one hand, the fact that GitHub has processed the complaint in a 17 USC 512(c)-like manner suggests that they are trying to stick to what they know with their 17 USC 512(c) process, even though the complaint actually regards 17 USC 1201. If this is the case, they might continue to try and stick to what they know and agree to process an e. mail purporting to be a counternotice.

On the other hand, GitHub's processing of such a counternotice in a 17 USC 512(c)-like way, because 17 USC 512(c) is not actually applicable, would not actually confer upon it any immunity. If it thereafter allowed the potential 17 USC 1201 violation to continue to be hosted on its service, it would be hard to argue that it was not hosting such material “wilfully”. In this regard, GitHub could, by trying to pretend that 17 USC 512(c) and the procedures it proscribes are applicable, accidentally confer liability upon itself by agreeing to republish material in violation of 17 USC 1201, if it were indeed the case that the database entry in question is such a violation.

Is the database entry a violation of 17 USC 1201?

I don't know.

That said, it seems like a stretch. What Easylist publishes is a list of domain names and URL patterns. This is not so different from publishing a list of companies which one argues one shouldn't do business with for one ethical reason or another. Since this dispute is taking place in the US and under US law, the 1st Amendment may also provide relevant protections.

If 17 USC 1201 is found to be applicable, however, it would hardly be the first time this ill-advised law has threatened to have baleful overreach.

But I will leave the more detailed considerations about the claim of 17 USC 1201 violation to people more qualified to evaluate the issue.

Disclaimer: I am not a lawyer and nothing in this document is legal advice.