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.

Show Hide image

Why the philosophy of people-rating app Peeple is fundamentally flawed

The app claims that “character is destiny”, and that we should be constantly judged based on our past interactions with others. But do we really believe that? 

Yesterday, you were probably one of the millions around the world who recoiled from their screen in blank-eyed horror at the news: Peeple, an app to be launched in November, will let others rate you, publicly, on the internet, and there's nothing you can do about it. You can't opt out, and you don't need to join in order to be rated on a scale of one to five by colleagues, friends, and romantic partners. That boy whose girlfriend you stole? He can review you. The boss you swore at as you quit? Her, too. Those people in your life who think you're just a bit average? Expect a lukewarm three stars from them.

Of all the online rage at the app's announcement, perhaps the most was directed at the fact that you can't remove your own profile. Other users need only submit your mobile number and name to create your page, and you have no control about who posts on there. Reviews of two stars or less are invisible to the public for 48 hours, and you have the chance to review them and try to "work it out" with the rater. Once that time is up, though, the negative reviews appear for all to see. You can comment on them to defend your corner, but unless they break the app's rules, you can't delete them.

There are all kinds of problems with Peeple's premise. Despite its founders' promises that bullying and harassment won't be tolerated (helped slightly by the fact that users must be over 21 and use their full name and Facebook profile to comment), it seems impossible that they'll be able to moderate this effectively. And as we've learned from sites like TripAdvisor or Yelp, the majority of reviews are from those seeking to boost the company's reputation, rivals, or angry customers - it's rare to see one that's balanced and helpful.

Yet the biggest flaw of all is the assumption that public rating and shaming has a place, or is even acceptable, in our society. There's something fundamentally broken in the app's presmise, which is summarised in its tagline, "character is destiny".  As western society has moved on from earlier ages where people were fundamentally changed in the eyes of the law and public into "criminals" by virtue of their deeds, or a time where a woman was utterly defined by her sexual acts, we've ceased to accept this as truth. The app's whole set-up assumes that someone who has offended a co-worker is likely to do it again, or a positive review from a partner makes it likely you'll enjoy a good relationship with them. As a society, we accept that some violent criminals are likely to re-offend, but we also see the value of rehabilitation, and can accept that people make mistakes they're unlikely to repeat. 

The dark side of social media is that it moves us backwards on this front. It allows permanent imprints of our online lives to be seen by everyone, to the extent where they seem to represent us. Victims of cyberbullying terrified that naked photos of them will be released, or people who make public gaffes on social media, become reduced to and defined by single acts. The mental health deterioration (and sometimes  suicide) that follows these shamings hints at how unnatural it is for single actions to change lives in such disproportionate ways. 

Jon Ronson, author of So you've been publicly shamed, which cleverly links the current culture of internet shaming with a legal past where criminals were shamed indefinitely as criminals for a single illegal act, seems chilled by the prospect of Peeple:

As one review of Ronson's book noted:

As Ronson makes patently clear, all these people’s punishments by far outweighed the gravity of their so-called crimes. In fact, having researched the history of public shaming in America in the Massachusetts Archives, he can only conclude that Lehrer, for one, was humiliated to a degree that would have been thought excessive even in the 18th century, the Puritans of New England having seemingly worked out that to ruin a person in front of his fellows is also to refuse him a second chance in life.

As Ronson explores in his book, extreme public shaming doesn't make us better people, or encourage us not to repeat offend: it shuts us down and exiles us from society in a way that benefits no one. (This makes Peeple's URL – – seem grimly ironic). What Ronson calls "chronic shame" occurs when our regretted actions harden into something far greater, something we allow to become part of ourselves. As Gershen Kaufman, a scholar of shame, notes:  "Shame is the most disturbing experience individuals ever have about themselves; no other emotion feels more deeply disturbing because in the moment of shame the self feels wounded from within."

We also shouldn't be forever defined by a clutch of "good" actions, or people who see some benefit in leaving us gushing reviews. Those who measure their worth through social media come to rely on the endorphins sparked by small online interactions and boosts to their confidence, at the expense of the more slow-burning satisfaction of real life. A single person's thoughts about us are relatively inconsequential, whether positive or negative - but they're given far greater weight on the internet  by virtue of their permanence and publicity.

In Mary Gordon's novella The Rest of Life, a character wishes that someone had told her earlier that "the world is large and will absorb the errors you innocently make". If we're to avoid tearing each other to pieces, we need to make sure that this remains the case. 

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