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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Thanks to social media, ordinary people can now influence elections more than tabloids

The Conservatives spent £1.2m on online adverts – but the internet came up with anti-Theresa May memes for free.

Who or what spread the single most influential message of the 2017 general election? Was it Britain’s top-selling tabloid, the Sun, which chose 7 June to chastise us all with: “Don’t chuck Britain in the Cor-bin”? Was it Facebook, home to Theresa May’s £1.2m anti-Labour adverts that pleaded: “Don’t risk Corbyn in charge of Brexit”? Or was it Jennifer ­Agnew, a 21-year-old administrative assistant from East Kilbride?

You’ve probably heard of the first two. Since the newspaper first claimed as much in 1992, it has been a popular idea that it’s the Sun wot wins elections. This year, much has been made of “dark ads” on Facebook – paid-for messages that political parties can spread across the social network, beyond the gaze of the Electoral Commission. You’ve probably not heard of Agnew, but you might have seen her viral tweet.

After Theresa May disclosed the “naughtiest” thing she ever did on ITV’s Tonight, Agnew took to Twitter to mock the revelation. “Never have I ever ran [sic] through a field of wheat,” she wrote above a picture of May drinking from a glass of water, riffing on the student party game in which one drinker confesses to a misdeed and others take a sip if they, too, are guilty. Her tweet was shared more than 24,000 times and gained an additional 60,000 “Likes”.

“It was just a joke, really, but also poking fun at the difference in classes,” says Agnew, whose post went on to be retweeted by the pop star Ellie Goulding. “I can’t say I’ve ever run around in a field of wheat as a child being chased by farmers. It seems rather middle class.”

On 8 June, Agnew voted for the SNP. She didn’t intend for her tweet to have political ramifications but describes herself as “a big fan of Corbyn”, saying: “As far as politicians go, he’s honest.” Yet, regardless of Agnew’s intentions, her tweet was political. It was a powerful anti-May message – and it didn’t cost the Labour Party a penny.

Since Barack Obama’s first presidential campaign, it has been widely understood that elections are fought across social media. Algorithms, some claim, boosted the fake news that propelled Donald Trump to office. By adding like-minded people as “friends” and deleting any dissenters, we all became entrapped in filter bubbles, unable to see the 2015 election result coming.

Face­book adverts that were micro-targeted to spread specific messages to specific people helped to bolster the vote for Brexit. All of these analyses are true, but each misses the most transformational aspect of social media. You know: the actual media part.

As of December 2016, the Sun had 1,611,464 readers every day. That’s a lot. But nowadays, people don’t need Rupert Murdoch and a printing press to wield political influence (they do, however, still need a witty pun). According to Twitter’s ­analytics tool, Agnew’s tweet reached over 2.9 million people. Everyone now has the potential to have the reach and influence of a tabloid.

Her tweet isn’t remarkable. It is merely one of thousands of viral social media posts that have spread this election, many of which generated headlines (“This Facebook comment about Jeremy Corbyn is going ­viral” read one on Indy100, the Independent’s sister site).

Hannah Thompson, a 24-year-old PR officer from Surrey, is another meme-maker. When the concept was introduced by Richard Dawkins, a meme was “an idea, behaviour or style that spreads from person to person within a culture”. Now, it most commonly means “funny internet picture”. Yet memes might be just as influential as Dawkins’s original definition implied.

“I pretty much exclusively use Twitter as an avenue for my lame political jokes,” says Thompson, who tweeted a zoomed-in picture of Theresa May with the caption: “Nice wheat field you’ve got there. Would be a shame if somebody . . . ran through it” (7,243 retweets, 22,450 Likes).

“It would be helpful if more politicians understood the ‘social’ element of social media,” she adds. “Then, instead of spending hundreds of thousands just getting views for their posts, they can create things that actually engage people and help shift the narrative in people’s minds. I was really impressed by how Labour encouraged their members and activists to share things online. Seeing posts by actual human beings, rather than a party, is way more convincing than seeing a paid-for ad.”

There is a chance that, by the next election, politicians will have realised that a picture is worth a thousand words. Astro­turfing, the practice of masking the origin of a message to make it seem like a grass-roots opinion, is already common online. Advertisers frequently create profiles for fake teenagers, who then tweet about how much they “love” a product in order to make it seem popular.

After the shock election result, analysis by BuzzFeed revealed that stories published on the websites of right-leaning news­papers (such as the Daily Telegraph, the Daily Mail and the Sun) failed to reach large audiences on Facebook and Twitter. BuzzFeed’s headline read: “Not even right-wingers are sharing positive stories about Theresa May on Facebook”. The most shared stories on social media were pro-Corbyn.

For all of the Conservatives’ power and wealth, their social media campaigns did not take off. Why? Because they weren’t inherently social. Theresa May relied on pounds to push her message, while Agnew and those like her relied on people.

As one social media user put it (receiving 8,790 retweets and 19,635 Likes): “Tories spent £1,200,000 on negative anti-Jeremy Corbyn social media adverts ... And the internet came up with anti-Theresa May memes for free.”

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

This article first appeared in the 15 June 2017 issue of the New Statesman, Corbyn: revenge of the rebel

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