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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Don’t shoot the messenger: are social media giants really “consciously failing” to tackle extremism?

MPs today accused social media companies of failing to combat terrorism, but just how accurate is this claim? 

Today’s home affairs committee report, which said that internet giants such as Twitter, Facebook, and YouTube are “consciously failing” to combat extremism, was criticised by terrorism experts almost immediately.

“Blaming Facebook, Google or Twitter for this phenomenon is quite simplistic, and I'd even say misleading,” Professor Peter Neumann, an expert on radicalisation from Kings College London, told the BBC.

“Social media companies are doing a lot more now than they used to - no doubt because of public pressure,” he went on. The report, however, labels the 14 million videos Google have removed in the last two years, and the 125,000 accounts Twitter has suspended in the last one, a “drop in the ocean”.

It didn’t take long for the sites involved to refute the claims, which follow a 12-month inquiry on radicalisation. A Facebook spokesperson said they deal “swiftly and robustly with reports of terrorism-related content”, whilst YouTube said they take their role in combating the spread of extremism “very seriously”. This time last week, Twitter announced that they’d suspended 235,000 accounts for promoting terrorism in the last six months, which is incidentally after the committee stopped counting in February.

When it comes to numbers, it’s difficult to determine what is and isn’t enough. There is no magical number of Terrorists On The Internet that experts can compare the number of deletions to. But it’s also important to judge the companies’ efforts within the realm of what is actually possible.

“The argument is that because Facebook and Twitter are very good at taking down copyright claims they should be better at tackling extremism,” says Jamie Bartlett, Director of the Centre for the Analysis of Social Media at Demos.

“But in those cases you are given a hashed file by the copyright holder and they say: ‘Find this file on your database and remove it please’. This is very different from extremism. You’re talking about complicated nuanced linguistic patterns each of which are usually unique, and are very hard for an algorithm to determine.”

Bartlett explains that a large team of people would have to work on building this algorithm by trawling through cases of extremist language, which, as Thangam Debonnaire learned this month, even humans can struggle to identify.  

“The problem is when you’re dealing with linguistic patterns even the best algorithms work at 70 per cent accuracy. You’d have so many false positives, and you’d end up needing to have another huge team of people that would be checking all of it. It’s such a much harder task than people think.”

Finding and deleting terrorist content is also only half of the battle. When it comes to videos and images, thousands of people could have downloaded them before they were deleted. During his research, Bartlett has also discovered that when one extremist account is deleted, another inevitably pops up in its place.

“Censorship is close to impossible,” he wrote in a Medium post in February. “I’ve been taking a look at how ISIL are using Twitter. I found one user name, @xcxcx162, who had no less than twenty-one versions of his name, all lined up and ready to use (@xcxcx1627; @xcxcx1628, @xcxcx1629, and so on).”

Beneath all this, there might be another, fundamental flaw in the report’s assumptions. Demos argue that there is no firm evidence that online material actually radicalises people, and that much of the material extremists view and share is often from mainstream news outlets.

But even if total censorship was possible, that doesn’t necessarily make it desirable. Bartlett argues that deleting extreme content would diminish our critical faculties, and that exposing people to it allows them to see for themselves that terrorists are “narcissistic, murderous, thuggish, irreligious brutes.” Complete censorship would also ruin social media for innocent people.

“All the big social media platforms operate on a very important principal, which is that they are not responsible for the content that is placed on their platforms,” he says. “It rests with the user because if they were legally responsible for everything that’s on their platform – and this is a legal ruling in the US – they would have to check every single thing before it was posted. Given that Facebook deals with billions of posts a day that would be the end of the entire social media infrastructure.

“That’s the kind of trade off we’d be talking about here. The benefits of those platforms are considerable and you’d be punishing a lot of innocent people.”

No one is denying that social media companies should do as much as they can to tackle terrorism. Bartlett thinks that platforms can do more to remove information under warrant or hand over data when the police require it, and making online policing 24/7 is an important development “because terrorists do not work 9 to 5”. At the end of the day, however, it’s important for the government to accept technological limitations.

“Censorship of the internet is only going to get harder and harder,” he says. “Our best hope is that people are critical and discerning and that is where I would like the effort to be.” 

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