The Supreme Court ruling which could break, or save, the internet

Do you "copy" a website just by reading it?

Last August, I wrote about the High Court ruling which could break the internet. The Newspaper Licensing Agency, which exists to grant licenses to organisations — mainly media monitors — which need to make copies of newspapers, had taken a PR company called Meltwater to court. Meltwater's crime was realising that, rather than photocopying papers and sending them to clients (which undoubtedly requires a license), they could just send them links instead.

Clearly that breaks the NLA's business model, and the agency took Meltwater to court, arguing that even the link-sharing model was a breach of copyright. Astonishingly, they won, with two arguments which betrayed a complete lack of understanding about how the internet works, and which, if they become an accepted part of UK case law, threaten the backbone of social interaction online.

The first argument the NLA made was that the act of sharing a link with a headline was itself potentially infringing on copyright. The judge concurred, arguing that crafting a newspaper headline takes skill and that this headline must be a protected work in its own right.

Traditionally, titles of creative works aren't copyrightable (although they may be trademarkable) which is why, for instance, there are multiple films called the Last Stand and multiple songs called the Look of Love. The ruling effectively makes newspaper headlines into very short poems — which may be true for some, but is unlikely to be the case for most.

The second argument was that, since the act of viewing a webpage involves creating a copy of it on your computer, Meltwater and their clients had infringed the implied license granted by the newspapers, and had to pay for an explicit right to read the content.

Quite apart from the fact that that argument is on shaky legal ground — European case law calls for a temporary copy exemption which covers precisely that type of use — it is also entirely at odds with how the internet works. It is akin to saying that, because you have to make a copy of a book on your retinas to read it, you could be sued for copyright infringement if you breach the "implicit license" that it's not to be read on holiday.

The rulings were appealed once, to the High Court, where both were upheld, and Meltwater — which has been joined by the PR industry's trade body, the PRCA — are now appealing to the Supreme Court. Sadly, they have dropped their objection to the first point of law, which means that newspaper headlines remain copyrighted and that, theoretically, you could be sued for tweeting a link to a piece with its headline if you don't have a license.

On the second point, however, the PRCA is appealing, and argues (correctly) that:

A temporary copy created on the screen of a computer simply as a technical necessity to allow the user to read the article should be considered to be within the temporary copying exception from copyright law. Reading a work should not be considered unlawful simply because one reads the work on a computer or other device as opposed to in print.

The NLA argues that the ruling is unlikely to affect anyone outside their business, but the language of the High Court's judgement is too open for that to be the case. Hopefully the Supreme Court will see sense, and dial back the power it has given copyright holders in favour of internet users nationwide. The case begins on Monday.

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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Anita Sarkeesian: “I don’t like the words ‘troll’ and ‘bully’”

The media critic and GamerGate target tells the Guardian that online harassers need a rebrand.

Anita Sarkeesian has been under attack for an entire year. She has received bomb threats, rape threats, gun threats, and threats that events she was due to speak at would be attacked. Her home address was circulated in online gaming communities. Her crime? She started a Kickstarter campaign for her YouTube channel, Feminist Frequency, to fund a series called “Tropes vs Women in Video Games”, which catalogues the sexist stereotypes and attitudes in gaming. 

So overall, it's pretty unsurprising that Sarkeesian doesn't call her attackers "trolls" or "bullies", with their comfy associations of schoolyards and fairytale bridges. 

Speaking in an interview with Jessica Valenti, published in the Guardian this weekend, Sarkeesian explains her reasoning:

“I don’t like the words ‘troll’ and ‘bully’ – it feels too childish. This is harassment and abuse."

She also implies that these words tie into a delusion entertained by some of the men themselves – that the abuse is just a bit of fun. Yet whatever the intent, Sarkeesian argues, “it still perpetuates all of the harmful myths attached to that language and those words”.

The interview also covers GamerGate controversy as a whole and Sarkeesian’s rise to prominence as someone willing to speak publicly about the abuse she has receved. As she points out, however,

“There are a lot of people who are being targeted who don’t get the attention I do. Women of colour and trans women, in particular, are not getting media attention and not getting the support they need.”

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.