by R. Daniel Mann
Question: I went on a religious website, and it detected that I have an ad-block program. They gave me a choice to disable my ad-block or continue while violating geneiva because ad-blocking takes away their parnasa. Would it be forbidden to continue with ad-blocking?
Answer: (We are not addressing the desirability of avoiding ads, some of which are not appropriate; hopefully a religious site’s ads are appropriate.) At first, this seems to depend on the broad question of intellectual property rights. Reuven produces something of value to the masses and, due to financial considerations, attaches conditions, classically not to copy even if one legally bought the object with the content (e.g., book). Here, the question is making viewing a site’s contents conditional on allowing advertisements on your screen.
Much has been written on the topic (see articles in Techumin VI). Our opinion upholds the halachic basis for guaranteeing such abstract rights in various contexts (see Living the Halachic Process, II, J-1; Techumin XXXII: p. 233-237). In short, there are three main issues, none of which are both unanimously held and apply in all circumstances, that can forbid using someone else’s “creation” freely. 1. A form of theft even without an object being taken. 2. A requirement to pay for benefit received from another’s property (neheneh). 3. Dina d’malchuta dina – the law of the land upholds many of the creators’ claims to ownership.
Ad blocking causes great losses to many website owners. Historically, many technological innovations, including the internet itself, have enriched some and impoverished others. Upholding intellectual property rights also does not support every claim by every “owner,” so let us analyze.
Let us start with #3. As far as we have seen, ad-blocking is not illegal, and we do not know if the site’s warning is legally significant. Thus, it is questionable whether dina d’malchuta will forbid using the site with ad-block.
Neheneh is complex to apply in this case. We rule that zeh neheneh v’zeh lo chaser (the user gains without the owner losing) is exempt (Shulchan Aruch, Choshen Mishpat 363:6). However, if the owner incurs any damage from the usage, the user has to pay the entire benefit he received (Tosafot, Bava Kama 20b; see Noda B’Yehuda II, CM 24). In this case, the site owner apparently sustains a loss when people use the site, in that it slows down the server, making the site less attractive to those who bring in revenue. While each individual person’s impact is negligible, the owner can argue that he treats ad-block users as a group he is unwilling to allow “for free.” On the other hand, it is possible that users cause more gain than damage even with ad-block (analysis is beyond my expertise), just that the site owner wants to force them to provide greater advantage. This would preclude a neheneh obligation (see Bava Kama 21a). If it is a site with ample free alternatives, there may not be enough user benefit to pay. Therefore, it is hard to be conclusive on this matter.
While we are not confident the issues above make it forbidden to use ad-blocking against the pleas of the website, we believe the owner can make it forbidden to use it. Even in a case of zeh neheneh v’zeh lo chaser, if the owner says up front that he forbids usage, it is indeed forbidden (see Shulchan Aruch, ibid.). At first glance, this restriction applies only according to those (far from unanimous) opinions that intellectual property is owned in a manner that stealing applies. However, here the owner is in a stronger halachic position because the user is connecting to a physical server, owned by them or, usually, by a web host whom he pays for their services. Therefore, usage is like using remote control to use someone’s equipment against his will, which is forbidden.
Therefore, our tentative position is that an owner can forbid you to use his site. (What it means if they do not prevent access but say it is forbidden is unclear.) We invite feedback on different elements of this new topic.