A group of the biggest US newspaper publishers — including Dow Jones, The Washington Post, and The New York Times Co. — have cosigned what they are calling a "cease and desist" letter (read it in full below) sent to the former Mozilla CEO's new browser company.
Brendan Eich's new browser, Brave, announced its launch early this year. The browser — available on iOS, Android, OS X, Windows, and Linux — has ad-blocking software baked into it, which blocks all ads by default and replaces them with its own ads that it says load quicker and "protect data sovereignty [and] anonymity" of users by blocking tracking pixels and cookies.
With Brave, publishers get around 55% of revenues: 15% go to Brave, 15% go to the partner that serves the ads, and 10% to 15% goes back to the user, who can choose to make bitcoin donations to their favorite publishers in order to get an ad-free experience on their websites, Eich told Business Insider in January.
'Blatantly illegal'
But the 17 newspaper-publishing companies that cosigned the letter sent to Eich on Thursday say that this business model is "blatantly illegal" because they claim Brave is profiting from the "$5 billion" a year the industry spends on funding journalism.
The publishers argue that Brave's advertising-replacement plan would constitute copyright infringement, a violation of the publishers' terms of use, unfair competition, unauthorized access to their sites, and a breach of contract.
The letter compares Brave's business model to a company simply stealing their articles and pasting them on their own websites for profit.
Eich provided a lengthy statement in response to the letter (which you can read in full below.)
In it, he said: "The NAA sent a letter to Brave Software that is filled with false assertions. The NAA has fundamentally misunderstood Brave. Brave is the solution, not the enemy."
Seeking damages of up to $150,000 per work
Not only do the publishers "expressly decline to participate in any way in Brave's supposed business model," but they threaten that they are "ready to enforce all legal rights" to protect their trademarks and copyrighted content.
The publishers, all of which are members of the Newspaper Association of America and together represent more than 1,200 newspapers in the US, threaten that they will seek damages of up to "$150,000 per work" that Brave monetizes.
This isn't the first time Brave has drawn ire from the media and advertising community.
In January, the CEO of the Interactive Advertising Bureau, Randall Rothenberg, ripped into Brave and other ad blockers in a speech at the US internet-advertising trade body's annual leadership conference.
Of Brave, he said:
The latest ad-blocking company is a Web browser startup called “Brave.” It was launched by former Mozilla CEO Brendan Eich, whose last major investment was in banning gay marriage in California. His business model not only strips advertisements from publishers’ pages — it replaces them with his own for-profit ads.
THIS is the true face of ad blocking. It is the rich and self-righteous, who want to tell everyone else what they can and cannot read and watch and hear — self-proclaimed libertarians whose liberty involves denying freedom to everyone else.
The ad-block profiteers are building for-profit companies whose business models are premised on impeding the movement of commercial, political, and public-service communication between and among producers and consumers. They offer to lift their toll gates for those wealthy enough to pay them off, or who submit to their demands that they constrict their freedom of speech to fit the shackles of their revenue schemes.
They may attempt to dignify their practices with such politically correct phrases as “reasonable advertising,” “responsible advertising,” and “acceptable ads”; and they can claim as loudly as they want that they seek “constructive rapport” with other stakeholders. But in fact, they are engaged in the techniques of The Big Lie, declaring themselves the friends of those whose livelihoods they would destroy, and allies to those whose freedoms they would subvert.
A Medianomics survey of 42 "high traffic" websites in the US published earlier this month found that 48% of respondents were "somewhat likely" and 36% were "definitely/very likely" to support taking collective legal action against ad-blocking companies.
Here's the full letter sent to Brave — you can also download it by clicking here. Brave's response is below.
Dear Mr. Eich:
Brave Software, Inc. (“Brave”), a company you founded, has announced that it intends to launch a browser and mobile applications that will display publishers’ content but replace publishers’ advertising with advertising that Brave sells for its own profit. You are hereby notified that Brave’s plan to replace our clients’ paid advertising content with its own advertising violates the law, and the undersigned publishers intend to fully enforce their rights.
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. Your public statements demonstrate clearly that you intend to harness and exploit the content of all the publishers on the Web to sell your own advertising. “We can provide access to all of the top publishers through a single channel with guaranteed ‘share of voice,’” Brave’s website claims. “This combination of better targeting and first-look access to all of the premium placements our users browse is something that no one else can provide.” There’s a simple reason “no one else” is purporting to “provide” all the content on the Web in one place for its own profit, without investing a penny in creating that content: 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.
We publish some of the most highly valued and widely read sites on the Web. Our sites and mobile applications provide news reporting, photojournalism, video content and feature writing that is researched, reported, edited, and produced at extraordinary cost. Our industry spends more than $5 billion per year on reporting in the United States alone. We distribute that reporting online for free or at highly subsidized rates, in no small part due to revenue from online ads.
Your apparent plan to permit your customers to make Bitcoin “donations” to us, and for you to donate to us some unspecified percentage of revenue you receive from the sale of your ads on our sites, cannot begin to compensate us for the loss of our ability to fund our work by displaying our own advertising. We expressly decline to participate in any way in Brave’s supposed business model. 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. In addition, you are not authorized to use our names, trademarks and logos in any way in connection with the promotion or operation of your business.
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. Unauthorized republication of our copyrighted content to support Brave’s illegal advertising model violates protected rights of publishers under the Copyright Act and other laws. 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 pursuant to 17 U.S.C. § 504. Brave’s use of publishers’ trademarks to sell its own advertising will confuse consumers, infringe upon publishers’ exclusive rights in their brands, and dilute our highly distinctive marks. We believe your planned activities will also constitute unfair competition and misappropriation under relevant federal, state and common law. Brave’s unauthorized activities involving our content and websites also violates our terms of use. 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.
Very truly yours,
ADVANCE LOCAL Vincent LaSpisa, Esq., Sabin, Bermant & Gould LLP, One World Trade Center, 44th Floor New York, New York 10007-2915
BH MEDIA GROUP Scott Searl, Esq., Senior Vice President and General Counsel, BH Media Group, 1314 Douglas Street, Suite 1500 Omaha, Nebraska 68102
CALKINS MEDIA INCORPORATED Sally A. Buckman, Esq., LermanSenter PLLC, 2001 L Street, N.W., Suite 400 Washington, D.C. 20036
DIGITAL FIRST MEDIA Marshall W. Anstandig, Esq., Senior Vice President and General Counsel, Digital First Media, 4 North 2nd Street, Suite 800 San Jose, California 95113
DOW JONES & COMPANY, INC., Jason P. Conti, Esq., Senior Vice President and Interim General Counsel, Dow Jones & Company, Inc., 1211 Ave of the Americas New York, New York 10036
GANNETT CO., INC., Barbara W. Wall, Esq., Senior Vice President, Chief Legal Officer, Gannett Co., Inc., 7950 Jones Branch Drive McLean, Virginia 22107
GATEHOUSE MEDIA/NEW MEDIA INVESTMENT GROUP, Polly Grunfeld Sack, Esq., Senior Vice President, General Counsel, GateHouse Media, 175 Sully’s Trail, 3rd Floor Pittsford, New York 14534
JOURNAL MEDIA GROUP, Hillary Ebach, Esq., Vice President and General Counsel, Journal Media Group, Inc., 333 W State Street Milwaukee, Wisconsin 53203
LANDMARK MEDIA ENTERPRISES, LLC, Guy R. Friddell, III, Esq., Executive Vice President and General Counsel, Landmark Media Enterprises, LLC, 150 Granby Street Norfolk, VA 23510
LEE ENTERPRISES INCORPORATED, Astrid Garcia, Esq., Lee Enterprises Incorporated, 201 N. Harrison St., Suite 600 Davenport, Iowa 52801
THE MCCLATCHY COMPANY, Juan Cornejo, Esq., Assistant General Counsel, The McClatchy Company, 2100 Q Street Sacramento, California 95816-6899
MORRIS PUBLISHING GROUP, LLC, J. Noel Schweers III, Esq., General Counsel, Morris Publishing Group, LLC, 725 Broad Street Augusta, Georgia 30901
THE NEW YORK TIMES COMPANY, Ken Richieri, Esq., Executive Vice President and General Counsel The New York Times Company, New York, New York 10018
NEWSDAY, LLC, Karen Au Claro, Esq., Senior Vice President, Law, Newsday, LLC, 235 Pinelawn Road Melville, New York 11747 
SCHURZ COMMUNICATIONS, INC., John Smarrella, Esq., Barnes & Thornburg, LLP, 100 North Michigan Street South Bend, Indiana 46601-1632
TRIBUNE PUBLISHING COMPANY, Karen Flax, Esq., Vice President and Deputy General Counsel, Tribune Publishing Company, 435 North Michigan Avenue Chicago, Illinois 60611
THE WASHINGTON POST, Jay Kennedy, Esq., Vice President and General Counsel, The Washington Post, 1301 K Street, NW Washington, D.C. 20071
Here is Brave's full response:
The NAA sent a letter to Brave Software that is filled with false assertions. The NAA has fundamentally misunderstood Brave. Brave is the solution, not the enemy.
The NAA's letter to Brave Software asserts that any browser that blocks and replaces ads on the browser user's device performs "unauthorized republication" of Web content. This is false on its face, since browsers do not "republish", serve, syndicate, or distribute content across the Internet or to any computer other than the one on which they run.
Browsers are the end-point for secure connections, the user agent that actually mediates and combines all the pieces of content, including third-party ads and first-party publisher news stories. Browsers can block, rearrange, mash-up and otherwise make use of any content from any source. 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 NAA letter also falsely asserts that Brave will share an "unspecified percentage of revenue", when our revenue share pie chart has been public and fixed from our first preview release in January. We give the lion's share (pun intended), up to 70% of ad revenue, to websites, keeping only 15% for ourselves and paying 15% to our users.
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. We categorically reject the claim that browsers perform "republication", and we repeat that Brave has a sound and systematic plan to financially reward publishers. We aim to outperform the invasive third-party ads that we block, with our better, fewer, and privacy-preserving ads.
Finally, we note that malvertisement has gotten onto the websites of the New York Times and the BBC recently through the ill-designed, unregulated, and poorly-delegated third-party advertising technology ecosystem. Truly, this tracker-based ad-tech ecosystem is what is damaging the brand value of content publishers and driving users to adopt ad-blocking software. Brave blocks and replaces only third-party ads and trackers. Our system thus actually repairs the damage that publishers have carelessly allowed their ad partners (and partners' partners, to the seventh degree of separation) do to their trademarked brands and names.
Make no mistake: this NAA letter is the first shot in a war on all ad-blockers, not just on Brave. Though the NAA never reached out to us, we would be happy to sit down with them for an opportunity to discuss how the Brave solution can be a win win. 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.
