U.S. newspapers threaten to sue Brave browser maker over ad-blocking scheme

Brave Software asserts it can 'make use of any content from any source,' and replace news sites' ads with its own if it wants

More than a dozen newspaper publishers yesterday threatened the maker of the new Brave browser with legal action if Brave Software goes ahead with plans to replace websites' ads with its own.

"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 [emphasis in original]," lawyers for 17 publishers wrote in a letter to Brave Software's founder and CEO, Brendan Eich.

The publishers represented more than 1,700 U.S. newspapers, including The New York Times, The Wall Street Journal, The Washington Post, and those in the Gannett chain.

Brave, the browser launched as a preview in January, was built by a team led by Eich, the creator of JavaScript and formerly CTO at Mozilla -- which develops Firefox -- and for a brief stint in 2014, Mozilla's CEO. Eich resigned from Mozilla after a storm of protest over contributions he made in 2008 to supporters of California's Proposition 8, a ballot measure that banned same-sex marriage.

The browser's revenue model, Eich explained nearly three months ago, was based on ad blocking. Brave will scrub websites of most of their ads and all tracking, then replace those now-empty slots with ads it sells. Seventy percent of the revenue from Brave's ad sales would be shared with publishers (55%) and users (15%). The latter will be able to turn that money -- in Bitcoin form -- over to their favorite sites or keep it. Brave will retain 15%, with the remaining 15% going to advertising partners.

The publishers said that was indistinguishable from theft, and in the cease-and-desist letter, promised to take legal action if Brave persisted.

"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," the letter stated. "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. We believe your planned activities will also constitute unfair competition and misappropriation under relevant federal, state and common law. 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."

There's a good reason why no one has attempted to do what Brave plans -- block sites' ads and replace them with its own -- the lawyers asserted. "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," they said.

In a long statement sent to Computerworld, the browser maker asserted, "Brave is the solution [to ad-blocking], not the enemy."

Brave also argued that the newspapers "fundamentally misunderstood Brave," and claimed that as a browser it was immune from legal punishment because it did not "republish" content, and could rearrange components on a web page as it saw fit. "Browsers can block, rearrange, mash-up and otherwise make use of any content from any source," Brave contended, an aggressive stance that the publishers obviously disagreed with.

Brave also cited other defenses, including everyone-else-does-it and we-didn't-create-ad-blocking."

"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 company said. "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."

With words like those, a legal test in the U.S. could follow, something Brave implicitly acknowledged.

"Make no mistake: this NAA letter is the first shot in a war on all ad-blockers, not just on Brave," Brave's letter stated. "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."

Today, the Newspaper Association of America (NAA), a trade group that represents about 2,000 papers -- and whose board of directors includes representative of many of the 17 publishers which issued the letter to Brave -- replied to the software firm's arguments.

"We continue to support our members' interest in their cease-and-desist letter notifying Brave of its planned unlawful activities," said NAA CEO David Chavern. "While we appreciate Brave's interest in defending its business model, and would not have expected otherwise, we continue to view their proposition as crossing legal boundaries."

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