JavaScript creator Brendan Eich’s plan to flip web advertising on its head just hit a legal snag.

Earlier this year, Eich’s company Brave Software unveiled a browser that automatically blocks third-party ads and blocking scripts. Such a tool would be controversial enough on its own, but Brave wants to go further by replacing those ads with its own more privacy-friendly ads and giving 70 percent of the revenue to publishers.

Although the preview version of the Brave browser doesn’t yet replace ads, publishers already are fighting back. This week the Newspaper Association of America, which represents more than 1,200 newspapers, sent Eich a letter that called his scheme “blatantly illegal” and promised legal action if Brave Software follows through on its plans.

Lawyers representing the likes of Dow Jones (which publishes the The Wall Street Journal), Gannett, The New York Times Company, Washington Post, Tribune Publishing Co. and WIRED’s sister company Advance Local signed the letter. The publishers label Brave’s plan as “republication” of their content that constitutes copyright violation. “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,” the lawyers wrote.

No Precedent

It’s no surprise the publishing industry is taking a hard line, but the law is unclear, says Mitch Stoltz of the Electronic Frontier Foundation. “What Brave is doing is certainly provocative,” he says. “But it’s also I think dangerous and concerning to claim that a person browsing the web has to view pages exactly as their authors intended.”

The problem is that a legal decision against Brave could apply not just to ad-blockers, but to things like accessibility tools that read pages aloud for the visually impaired. But even that’s not certain. Because Brave seeks to profit from how it modifies pages, it might be treated differently from other tools that rearrange or otherwise alter web content.

There’s little legal precedent in the US for the case, Stoltz says, though there have been some lawsuits against ad-blocker makers in Europe. But there are some comparable cases. For example, in the early aughts, software called Gator replaced banner ads with its own advertisements. A coalition of publishers, including Dow Jones and the The New York Times, sued the company behind Gator, which settled the case and changed its business model.

But Brave is different, because Gator came bundled with other software and most users didn’t know they’d installed it. The entire reason anyone might download Brave, is to block third-party ads. That makes it all the more difficult to predict how the courts may ultimately interpret the case. Plus, Stoltz says, there are other legal arguments the publishers can make, such as unfair competition.


In a response posted to Brave’s site, Eich argues that Brave doesn’t alter content, it merely replaces third-party ads that originate beyond the publisher’s walls anyway. And he insists the 70 percent revenue sharing model is more generous than the deals most third-party ad networks offer. (Brave will give another 15 percent to an ad broker and keeps the rest.)

Those arguments are unlikely to sway publishers, who argue that Brave’s revenue sharing plan “cannot begin to compensate us for the loss of our ability to fund our work by displaying our own advertising.”

“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,” the letter states.

This ultimately comes down to control. Publishers understandably want to manage what readers see on their websites. Publishers already have ceded tremendous control to third-party ad brokers, but at least publishers chose to do so. Brave denies them that option.

Readers, meanwhile, increasingly demand more control over what happens on their phones and computers. You don’t really know what sort of JavaScript code a page will run until you visit it, or what sort of information it might share with others.

What Brave claims to offer is a way to help readers control what happens on their computers while also providing much needed revenue to publishers. Today publishers don’t trust Brave, and its business model scares them because it appears to be so far beyond their control. But that’s the nature of web.

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Publishers Strike Back at a Browser That Replaces Their Ads