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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Pepe Le Pen: Can the alt-right really "meme" Marine Le Pen to victory?

Underneath the irony, is there any truth in the claims that memes can swing an election? 

Betteridge’s law of headlines states that any headline that ends in a question mark can be answered succinctly by the word “no”. As an addition, I’d like to suggest that if you add the word “meme” into the very same headline, you’ll most likely get a few four letter words in response as well.

Memes aren’t taken very seriously – which is fair enough, because they’re memes. But over the last year, viral images have been "weaponised" by various internet fringes to become, whether you like it or not, a political tool. “We actually elected a meme as president,” wrote a user on the forum 4Chan’s controversial /pol/ board after Donald Trump’s election win. This was an example of what 4Channers call (somewhat ironically) “meme magic”– creating memes that rise up out of the internet to have real-life consequences.

These same fringes of the alt-right are now trying to use meme magic to secure the victory of National Front leader Marine Le Pen in the French presidential elections. And why wouldn’t they? Events in 2016 have made memes a valid political tool. When the Anti-Defamation League declared Pepe the Frog a hate symbol in September last year, meme magic got real. Fast.

Enter Pepe Le Pen (or, in some circles, Le PenPe). Alt-right groups are now memifying the presidential hopeful to resemble Pepe the Frog. “They’re trying to get the LePenPe squad ready, 100 per cent,” an insider of a right-wing Facebook group told me. “We’re gonna meme Marine Le Pen into office,” wrote a user on the group.

It’s undeniable that at first glance all of this falls on the high end of the “completely ridiculous” scale. Even those on 4Chan argue about whether they’re being ironic or not. Yet though memes can’t take sole responsibility for securing Trump’s place as the 45th leader of the free world, they undoubtedly had a part to play. Firstly, the left’s mockery of Trump via memes gave him far too much attention in the early days of his campaign, and then the right kicked off what they now call “The Great Meme War” – the use of viral images to sway popular opinion.

Images are funny, but memes become potent when they have a message too. As Buzzfeed News reported last month, online chatrooms are forming where Americans can learn about European culture in order to create more effective memes. By using different templates and giving one another advice, Buzzfeed argued the “trolls [could] appear French without actually needing to speak French".

Indeed, memes with messages – however flippant – are undeniably the new propaganda poster. Think of the right-wingers pasting images of refugees and terrorists side-by-side, and left-wingers using images to claim children were handcuffed because of Trump's "Muslim ban". There are no statistics for the number of people who get their political views from viral images but it’s safe to say – judging by Likes and Shares alone – that they have an effect. This kind of propaganda poster doesn't even require sellotape to stick. 

Many of these memes might not make their way out of the groups that contain them (such as 4Chan's /pol/ and Reddit's r/Le_Pen). But that doesn't make them any less significant. In the past, ex-4Channers have spoken out about using the forum slowly made them more racist and sexist. The radicalisation of the vulnerable, in turn, effects the political world.

The other danger, of course, is the media taking these ironic memes too seriously. The declaration that Pepe was a "white supremacist" symbol gave alt-right meme-makers both legitimacy and something to laugh about. It is foolish to lend "Pepe Le Pens" status they do not deserve. Such a premature response has its own consequences - even if Le Pen doesn't win in May, the trolls do.

These are the real ways, then, that memes can sway an election. Of course, there is some survivorship bias at work here. 4Chan can claim they helped Trump to win because, well, Trump won. The same will happen with Le Pen. If she wins, they can claim responsibility, if not, they can go back to adding MS Paint swastikas to frogs.

So can Le Pen really be memed to victory? Screw you, Betteridge. The answer is “maybe”. 

Amelia Tait is a technology and digital culture writer at the New Statesman.