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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From Darwin to Damore - the ancient art of using "science" to mask prejudice

Charles Darwin, working at a time when women had little legal rights, declared “woman is a kind of adult child”.

“In addition to the Left’s affinity for those it sees as weak, humans are generally biased towards protecting females,” wrote James Damore, in his now infamous anti-diversity Google memo. “As mentioned before, this likely evolved because males are biologically disposable and because women are generally more co-operative and agreeable than men.” Since the memo was published, hordes of women have come forward to say that views like these – where individuals justify bias on the basis of science – are not uncommon in their traditionally male-dominated fields. Damore’s controversial screed set off discussions about the age old debate: do biological differences justify discrimination?  

Modern science developed in a society which assumed that man was superior over women. Charles Darwin, the father of modern evolutionary biology, who died before women got the right to vote, argued that young children of both genders resembled adult women more than they did adult men; as a result, “woman is a kind of adult child”.

Racial inequality wasn’t immune from this kind of theorising either. As fields such as psychology and genetics developed a greater understanding about the fundamental building blocks of humanity, many prominent researchers such as Francis Galton, Darwin’s cousin, argued that there were biological differences between races which explained the ability of the European race to prosper and gather wealth, while other races fell far behind. The same kind of reasoning fuelled the Nazi eugenics and continues to fuel the alt-right in their many guises today.

Once scorned as blasphemy, today "science" is approached by many non-practitioners with a cult-like reverence. Attributing the differences between races and gender to scientific research carries the allure of empiricism. Opponents of "diversity" would have you believe that scientific research validates racism and sexism, even though one's bleeding heart might wish otherwise. 

The problem is that current scientific research just doesn’t agree. Some branches of science, such as physics, are concerned with irrefutable laws of nature. But the reality, as evidenced by the growing convergence of social sciences like sociology, and life sciences, such as biology, is that science as a whole will, and should change. The research coming out of fields like genetics and psychology paint an increasingly complex picture of humanity. Saying (and proving) that gravity exists isn't factually equivalent to saying, and trying to prove, that women are somehow less capable at their jobs because of presumed inherent traits like submissiveness. 

When it comes to matters of race, the argument against racial realism, as it’s often referred to, is unequivocal. A study in 2002, authored by Neil Risch and others, built on the work of the Human Genome Project to examine the long standing and popular myth of seven distinct races. Researchers found that  “62 per cent of Ethiopians belong to the same cluster as Norwegians, together with 21 per cent of the Afro-Caribbeans, and the ethnic label ‘Asian’ inaccurately describes Chinese and Papuans who were placed almost entirely in separate clusters.” All that means is that white supremacists are wrong, and always have been.

Even the researcher Damore cites in his memo, Bradley Schmitt of Bradley University in Illinois, doesn’t agree with Damore’s conclusions.  Schmitt pointed out, in correspondence with Wired, that biological difference only accounts for about 10 per cent of the variance between men and women in what Damore characterises as female traits, such as neuroticism. In addition, nebulous traits such as being “people-oriented” are difficult to define and have led to wildly contradictory research from people who are experts in the fields. Suggesting that women are bad engineers because they’re neurotic is not only mildly ridiculous, but even unsubstantiated by Damore’s own research.  As many have done before him, Damore couched his own worldview - and what he was trying to convince others of - in the language of rationalism, but ultimately didn't pay attention to the facts.

And, even if you did buy into Damore's memo, a true scientist would retort - so what? It's a fallacy to argue that just because a certain state of affairs prevails, that that is the way that it ought to be. If that was the case, why does humanity march on in the direction of technological and industrial progress?

Humans weren’t meant to travel large distances, or we would possess the ability to do so intrinsically. Boats, cars, airplanes, trains, according to the Damore mindset, would be a perversion of nature. As a species, we consider overcoming biology to be a sign of success. 

Of course, the damage done by these kinds of views is not only that they’re hard to counteract, but that they have real consequences. Throughout history, appeals to the supposed rationalism of scientific research have justified moral atrocities such as ethnic sterilisation, apartheid, the creation of the slave trade, and state-sanctioned genocide.

If those in positions of power genuinely think that black and Hispanic communities are genetically predisposed to crime and murder, they’re very unlikely to invest in education, housing and community centres for those groups. Cycles of poverty then continue, and the myth, dressed up in pseudo-science, is entrenched. 

Damore and those like him will certainly maintain that the evidence for gender differences are on their side. Since he was fired from Google, Damore has become somewhat of an icon to some parts of society, giving interviews to right-wing Youtubers and posing in a dubious shirt parodying the Google logo (it now says Goolag). Never mind that Damore’s beloved science has already proved them wrong.