Halachic Ramifications of Ad-blocks

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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.

 

About Daniel Mann

This column is produced on behalf of Eretz Hemdah by Rabbi Daniel Mann. Rabbi Mann is a Dayan for Eretz Hemdah and a staff member of Yeshiva University's Gruss Kollel in Israel. He is a senior member of the Eretz Hemdah responder staff, editor of Hemdat Yamim and the author of Living the Halachic Process, volumes 1 and 2 and A Glimpse of Greatness.

11 comments

  1. I am no Posek, by any stretch, but it seems to me that if the site allows access, even with an ad-blocker enabled, it cannot be Genaivah. Any statements to that effect are simply attempts to guilt-trip the reader. After all, is “permission to steal” really stealing?

    • Am I misunderstanding or is your argument that if it isn’t nailed down, you are allowed to take it? I don’t find that convincing.

      • That is not a good analogy – their website is actively supplying me the pages which they ostensibly don’t want me to be able to access. Just like they pop up the warning when I am using an adblocker, they could just as easily refuse to serve the pages at all. A better analogy would be if I wanted to take something that was not nailed down, and the owner himself handed it to me.

      • This comment thread is talking about the permissibility of using the web site. R’ Mann’s question was the permissibility of blocking access. For example, arguments like “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.'” require a calculus involving many such users that wouldn’t apply to any one user.

  2. I do not understand. Judging from the closing, the question being discussed was whether a content provider has the right to block you if he detects you are not downloading the ads on his page. As his just yelling “prohibited” is addressed in the parenthesis as being unclear. The question as phrased appears to be more about what the person may choose to provide, or to whom he provides it, not others’ rights to use his content.

    Therefore in order to actually be a question, we would be presuming that the web site owner has some kind of duty to the reader. And so we are asking is he allowed to cheat the reader who uses an ad blocker. The web site owner is not obligated to provide content at all. So how can he be obligated to provide content to people who block his ads? What could possibly be assur about his having that blocker that the answer would be labeled “tentative”.

    The only question is whether he is telling you the truth if he doesn’t use a blocker, and instead of “please don’t” he presumes to tell you it’s assur. Is he correct that it’s prohbited? IOW, the question in the parenthesis.

    Let’s say I had a different kind of ad blocker, one that spent the bandwidth downloading the ad, but then doesn’t display it. The web site could not detect the difference between those who use it and those who didn’t, as all the same requests are being made of the server. So any pop-up to stop ad-less readers wouldn’t be triggered. I would be getting the benefit of content provider’s effort while clearly circumventing his desire about who gets it.

    This is closer to the question of web sites that just warn you that such use is prohibited, in the real world, where this other kind of ad blocker doesn’t yet exist. Except that the warning is instead of investing the effort to actually stop the ad-less reader, and one can presume that it shows a lesser heqpeidah than had the person just downloaded that plugin. Here, the owner did everything he could do to try to stop the reader.

    R’ Asher Weiss holds that copyright violation is chamas, in the sense of Chazal depicting the flood generation’s “chamas” as bankrupting people because many people would steal less than a perutah from a seller until he would end up taking a loss instead of making profit for the day. The prohibition of hasagas gevul and yeridah le’umanus chaveiro seem to be based on a similar ethic. I can’t see how, at the end of the day, this is going to end up permissible.

    • Judging from the closing, the question being discussed was whether a content provider has the right to block you if he detects you are not downloading the ads on his page

      I believe you are misreading R. Mann’s conclusion. His discussion is whether, if the website owner disallows the use of ad-blockers, you are allowed to use an ad-blocker against the website owner’s explicit wishes.

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