The High Court ruling which could break the internet

Could linking to a website be copyright infringement?

The Newspaper Licensing Agency (NLA) is a little-known victim of the disruptive forces of the internet, but in trying to fight for survival, they may just have broken the whole thing. 

Created as a private company owned by a consortium of news organisations in 1988, it oversees the granting of blanket licenses to the copyright of newspapers. Their primary purpose is to grant media monitoring agencies (companies monitor the press for clients, usually PR firms) the permissions they need to send out copies of newspaper articles without having to negotiate payment for every clipping.

For obvious reasons, this revenue stream has come under attack in the age of the internet. Why pay for permission to make a photocopy of the Guardian when you can just send your client a link to the story on Guardian.com? But the NLA decided to carry on making media monitors, even ones which operated entirely online, pay for a license, and last year sued a holdout firm, Meltwater News, in a test case.

The issue eventually made it to the Court of Appeal, where it was decided that the NLA did have the authority to force Meltwater, and other media monitors, to pay the fees. In itself, the case is small-fry – media monitoring agencies are not, after all, a massive part of the economy. But the legal reasoning behind the judgement is far more wide-ranging, and coming from the Court of Appeal, now constitutes a key part of the case law that drives the legal system of England and Wales.

In the High Court, the activities of media monitoring firms were held to require licenses because the mere act of visiting a website involves making a local copy of that page. That copy, it was decided, is normally provided under an implicit license from the site-owner, but when a media monitor visits the page, they need to pay for an explicit license. In addition, there was a second, even more damaging, claim. It was decreed that a headline was a literary work independent of its article, and that again, media monitoring firms had to pay for a license to distribute it. The High Court also ruled that Meltwater's clients – mainly PR agencies – needed their own license to browse through the links sent to them.

Much of the ruling seemed at odds with existing copyright law. The technological necessity of downloading a copy of a webpage in order to view it has historically been allowed as a "transient copy" under the Copyright, Designs and Patents Act, while titles – of which headlines are surely a subset – have never been copyrightable

Moreover, the European Union accepts that the act of visiting a website necessitates the creation of a copy. As a result, it requires that fees not be charged if the temporary copies made are "carried out for the sole purpose of enabling... a lawful use of a work". In fact, this exemption is the only one which is mandatory. Yet the Court ignored the directive, and decided instead that Meltwater's clients had made "a prima facie copyright infringement" by clicking on the links in Meltwater's briefing.

Just think about that. Clicking on a link, even one which leads to entirely legal content, could nonetheless constitute copyright infringement. The ruling puts at risk the basic skeleton of the internet.

The NLA has no plans to actually do anything but enforce their existing licensing authority online. But the whole point of case law is that it applies to more than just the participants in the original case. There's no telling who the next person to attempt to use this law will be. And of course, it's not like relying on the discretion of the authorities works out particularly well.

The law needs to be changed. But when an amendment to the Enterprise and Regulatory Reform bill was proposed last month which would do just that, the minister in charge, George Lamb, abdicated responsibility, arguing that "ultimately, the matter is for the courts to determine."

The Supreme Court won't hear the case until February 2013, leaving months of legal uncertainty. But in the end, that is besides the point. The question is not what the law does, in fact, say, but what it ought to say. The government does not need to wait for the Supreme Court to decide on the law as it stands to change the law to make it absolutely explicit that linking with a headline is not infringing, and to clarify that viewing a website does not involve making an actionable copy. It should have got moving on that the minute the case made it to the High Court; instead, it seems determined to put it off as long as possible.

Update: The NLA responds

David Pugh, the Managing Director of the NLA, writes:

Alex, I think the internet is made of sterner stuff than you suggest!

I don’t think it is in any danger of falling over any time soon as a result of the NLA v Meltwater case, which simply established that media monitoring companies that copy published content and use it to provide a paid-for ‘web cutting’ service for clients need a licence – and so do the clients paying for the service. That simply ensures a fair return for publishers.

The ruling does not mean that anyone clicking on a news website or sending a link to a friend is now a criminal!

The government has not been swayed by the minority lobby that was unhappy with the decisions of the High Court and Court of Appeal and now seeks to encourage MPs to use the Enterprise and Regulatory Reform Bill to rush through ill-conceived legislation that is not required.

I hope Pugh is right that the internet is strong enough to resist, but I disagree with his characterisation of the case. What he describes is all the NLA wanted to establish; but in doing so, a precedent was set which greatly expanded the scope of copyright online.

And while no-one involved is criminalised (this is a matter of civil, not criminal law), there is the chance this new precedent will be used in unforseen ways. As an example, earlier this year, Wonga received extraordinarily bad PR over a page they had set up on their website aimed at selling loans to students. I, as with many other journalists, linked to that page, with the headline. The precedent set by NLA v Meltwater could provide them grounds to sue for infringement.

That cannot be allowed to happen. If our current copyright legislation is open to interpretation that it does, then it is out-of-date for the internet age, and must be refreshed.

Photograph taken from Etsy user pixelparty

A sad mac. Photograph: Etsy/pixelparty

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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As Donald Trump once asked, how do you impeach a President?

Starting the process is much easier than you might think. 

Yes, on Friday, Donald Trump will be inaugurated as the 45th President of the United States. And no, you can’t skip the next four years.

But look on the bright side. Those four years might never happen. On the one hand, he could tweet the nuclear codes before the day is out. On the other, his party might reach for their own nuclear button – impeachment. 

So, how exactly can you impeach a President? Here is our rough guide.

OK, what does impeachment actually mean?

Impeachment is the power to remove an elected official for misconduct. Here’s the relevant clause of the US Constitution:

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Impeachment is actually a legacy of British constitutional history, and dates back as far as 1376, but according to our own parliamentary website, in the UK “this procedure is considered obsolete”. 

It’s up to the US Congress to decide whether to impeach and convict a President. Both houses are controlled by the Republicans, so impeaching Trump would mean turning against one who is – technically at least – one of their own. Since he’s already insulted the neighbouring country, supported discrimination against Muslim immigrants and mocked a disabled reporter, their impeachment threshold seems pretty high. But let’s imagine he surpasses himself. What next?

The impeachment process

Members of the House of Representatives – the lower chamber of the Congress – can start the impeachment process. They in turn may be encouraged to do so by voters. For example, there is a whole Wikipedia page dedicated to people who tried to impeach Barack Obama. One Impeach Obama supporter simply gave his reason as stopping the President from “pushing his agenda”. Another wanted to do so on the grounds of gross incompetence...

But for an impeachment attempt to actually work, the impeacher needs to get the support of the house. If a majority agree with the idea of impeaching the elected official, they nominate members to act as prosecutors during the subsequent trial. This takes place in the Senate, the upper house of Congress. In most impeachments, the Senate acts as judge and jury, but when a President is impeached, the chief justice of the United States presides.     

Two-thirds of the Senate must vote for impeachment in order to convict. 

What are the chances of impeaching Donald Trump?

So if Trump does something that even he can’t tweet away, and enough angry voters email their representatives, Congress can begin the process of impeachment. But will that be enough to get him out?

It’s often assumed that Richard Nixon was kicked out because he was impeached for the cover up known as the Watergate Scandal. In fact, we’ll never know, because he resigned before the House could vote on the process.

Two decades later, the House got further with Bill Clinton. When it emerged Clinton had an affair with Monica Lewinsky, an intern, he initially denied it. But after nearly 14 hours of debate, the Republican-controlled House of Representatives decided to impeach him on grounds including perjury and obstruction of justice.

In the Senate trial, Clinton’s defenders argued that his actions did not threaten the liberty of the people. The majority of Senators voted to acquit him. 

The only other Presidential impeachment took place in 1868, when President Andrew Johnson, removed a rabble-rouser from his Cabinet. The guilty vote fell short of the two-thirds majority, and he was acquitted.

So, what’s the chances of impeaching Trump? I’ll leave you with some numbers…

 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.