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RE: tracking-ISSUE-93: Should 1st parties be able to degrade a user experience or charge money for content based on DNT? [Tracking Definitions and Compliance]

From: Mike Zaneis <mike@iab.net>
Date: Thu, 20 Oct 2011 19:21:11 +0000
To: Tom Lowenthal <tom@mozilla.com>, "public-tracking@w3.org" <public-tracking@w3.org>
Message-ID: <9FF2724793CE3843BF5E46A70AA609A51555D66E@IAB-NYC-EX1.IAB.local>
Thanks Tom, you are absolutely correct in that we should provide background material when we are establishing the facts for debate around these issues.  Here is some material to solidify these facts:


1.  "Some companies already block users from their sites who use ad blocking technologies because it fundamentally impairs 
their ability to monetize their content."  

I was agreeing with JC's comment that content owners already charge users for access to some content and services.  This statement is not in question as we are all aware of content sites like the Wall Street Journal that charge for access or pay-for premium services like those offered by Linked In.  I was also expanding this line of reasoning by pointing out that some sites have blocked users who use ad blocking technologies.  Here is one example - http://arstechnica.com/business/news/2010/03/why-ad-blocking-is-devastating-to-the-sites-you-love.ars, but others have done so in a less public way.


2.  "If we use a broad definition of tracking, similar to the FTC's definition, then we will be potentially impacting over 80% of the online ad market."

The IAB conducted a survey of the buy side of the online advertising industry (we canvassed the major ad agencies) and found that when we used the FTC's definition of OBA, over 80% of all advertising campaigns would fall under this definition.  We have published this survey in a number of venues over the years - http://www.iab.net/media/file/IAB_Comments_to_Congressman_Boucher%5C%27s_Draft_Privacy_Legislation.pdf (page4) - and as recently as last week when the DAA testified before the U.S. House of Representatives. 


3.  "Publishers and content owners have every right, in fact have fundamental rights, to offer their goods and services as they see fit."

Content is copyrightable.  In the U.S. this right was so fundamental (sometimes called national rights) that it was written into our Constitution:
	Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United 	States Congress:

	" To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the 	exclusive Right to their respective Writings and Discoveries.

Generally speaking, this right extends for the life of the author plus an additional 70 years.  To own a copyright means that the author owns a bundle of exclusive rights (see Title 17, Chapter 1, Section 106 of the U.S. Code) - http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000106----000-.html.  One of those rights is the right to decide how your work is distributed, which includes the right to exclude others from seeing or using your works, i.e. to offer access to your work under your own terms, including charging a fee or requiring viewers to allow advertising.  This is what I mean by fundamental rights of publishers and content owners.

I could discuss contractual rights and the fact that most websites have Terms of Service that reserve the right to offer their content and services to consumers on the site's own terms, but that is not necessary a fundamental right.  We could also have a discussion here about patent rights since many sites rely heavily on patents, but again, I think the copyright issue best illustrates the fundamental rights of publishers and content owners.


Mike Zaneis
SVP & General Counsel
Interactive Advertising Bureau
(202) 253-1466

Follow me on Twitter @mikezaneis



-----Original Message-----
From: public-tracking-request@w3.org [mailto:public-tracking-request@w3.org] On Behalf Of Tom Lowenthal
Sent: Wednesday, October 19, 2011 7:54 PM
To: public-tracking@w3.org
Subject: Re: tracking-ISSUE-93: Should 1st parties be able to degrade a user experience or charge money for content based on DNT? [Tracking Definitions and Compliance]

Mike, I seem to be a little behind on my ad-industry insider baseball, because you've thrown out a few things that I haven't heard about before
now:

1. publishers banning users who user ad-blockers, 2. what you mean by "impacting 80% of the online ad market", and 3. the fundamental rights of corporations.

I'm sure that there are others on the list who are similarly behind the curve, so it'd be great to get some background/links on this.

On 10/19/2011 01:09 PM, Mike Zaneis wrote:
> I agree with JC.  Some companies already block users from their sites 
> who use ad blocking technologies because it fundamentally impairs 
> their ability to monetize their content.  If we use a broad definition 
> of tracking, similar to the FTC's definition, then we will be 
> potentially impacting over 80% of the online ad market.
> Publishers and content owners have every right, in fact have 
> fundamental rights, to offer their goods and services as they see fit.
Received on Thursday, 20 October 2011 19:21:56 UTC

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