How The DMCA's Digital Locks Provision Allowed A Company To Delete A URL From Adblock Lists

Starting late last week, there's been a bit of a fuss in various circles about a DMCA notice being used to remove a domain from one of the most prominent adblocking server lists, known as Easylist. AdGuard had a big blog post about it, as did TorrentFreak and Gizmodo. But, the whole situation is somewhat confusing, and requires understanding a variety of different things, from how adblocking works, to how certain paywalls work and, most importantly, how two separate parts of the DMCA -- the notice and takedown portions of DMCA 512 intersect with the anti-circumvention/"digital locks" provisions of DMCA 1201.

So, let's dig in. The easiest bit is how adblocking works. You probably already know the basics, but it relies on listing out designated servers, and then blocking resources from those servers from loading. Pretty straightforward. Now, there's a whole industry that has grown up around being anti-adblocking (we get pitches from these people all the time, and tell them to go away, because we actually let you turn off ads directly if you want). Most of the anti-adblock solutions are annoying in one way or another, of course. One popular solution that many popular sites have started using is that they try to detect if you are using an adblocker -- and if they think you are, you're blocked from reading the content unless you disable the adblocker. We've pointed out why we think this is a dumb strategy for a variety of reasons, not the least of which being that after Forbes made people turn off its adblockers, it served up malware via its ads. Oops.

Anyway, one of the companies that offers the technology for this kind of "turn off your adblocker to access this content" setup is a company called Admiral. One of the domains that Admiral apparently uses for its technology is called "functionalclam.com." You can go to the site where you'll see the following nonsense text that almost sorta kinda makes sense, but really doesn't:

This domain is used by digital publishers to control access to copyrighted content in accordance with the Digital Millennium Copyright Act and understand how visitors are accessing their copyrighted content.

Right? It almost makes sense, but then you're left wondering -- wait, how does a domain "control access to copyrighted content"? And, why would a domain have anything to do with the DMCA? Hang tight, we'll get there.

Let's go back to Easylist, which is housed, like so many things, on Github. Last week, Easylist's Github page showed a comment saying that "functionalclaim.com" had been removed "due to DMCA takedown request." This immediately got a lot of people upset -- perhaps reasonably so -- but the whole thing is a bit more complicated. When we talk about the DMCA there are two main parts that we often talk about -- and in nearly every case, the two separate parts of the DMCA we talk about them entirely separately, because they cover different things, and it's rare that they ever intersect.

We most commonly talk about DMCA 512, which is the notice-and-takedown part of the DMCA, laying out the rules for a copyright holder to send a DMCA takedown notice to a platform, as well as the rules for how a platform needs to respond. The other part of the DMCA, which we also still talk about pretty frequently is DMCA 1201, sometimes called the "anti-circumvention" section or the "digital locks" section. This is the (highly problematic!) part of the DMCA that says that circumventing "technological measures" that are designed to "control access" to a work protected by copyright. 1201 is dangerously broad in that it makes it a violation of the law to "manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof" if the purpose of that technology is to circumvent. In practice, this means that