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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Fark.com’s censorship story is a striking insight into Google’s unchecked power

The founder of the community-driven website claims its advertising revenue was cut off for five weeks.

When Microsoft launched its new search engine Bing in 2009, it wasted no time in trying to get the word out. By striking a deal with the producers of the American teen drama Gossip Girl, it made a range of beautiful characters utter the words “Bing it!” in a way that fell clumsily on the audience’s ears. By the early Noughties, “search it” had already been universally replaced by the words “Google it”, a phrase that had become so ubiquitous that anything else sounded odd.

A screenshot from Gossip Girl, via ildarabbit.wordpress.com

Like Hoover and Tupperware before it, Google’s brand name has now become a generic term.

Yet only recently have concerns about Google’s pervasiveness received mainstream attention. Last month, The Observer ran a story about Google’s auto-fill pulling up the suggested question of “Are Jews evil?” and giving hate speech prominence in the first page of search results. Within a day, Google had altered the autocomplete results.

Though the company’s response may seem promising, it is important to remember that Google isn’t just a search engine (Google’s parent company, Alphabet, has too many subdivisions to mention). Google AdSense is an online advertising service that allows many websites to profit from hosting advertisements on its pages, including the New Statesman itself. Yesterday, Drew Curtis, the founder of the internet news aggregator Fark.com, shared a story about his experiences with the service.

Under the headline “Google farked us over”, Curtis wrote:

“This past October we suffered a huge financial hit because Google mistakenly identified an image that was posted in our comments section over half a decade ago as an underage adult image – which is a felony by the way. Our ads were turned off for almost five weeks – completely and totally their mistake – and they refuse to make it right.”

The image was of a fully-clothed actress who was an adult at the time, yet Curtis claims Google flagged it because of “a small pedo bear logo” – a meme used to mock paedophiles online. More troubling than Google’s decision, however, is the difficulty that Curtis had contacting the company and resolving the issue, a process which he claims took five weeks. He wrote:

“During this five week period where our ads were shut off, every single interaction with Google Policy took between one to five days. One example: Google Policy told us they shut our ads off due to an image. Without telling us where it was. When I immediately responded and asked them where it was, the response took three more days.”

Curtis claims that other sites have had these issues but are too afraid of Google to speak out publicly. A Google spokesperson says: "We constantly review publishers for compliance with our AdSense policies and take action in the event of violations. If publishers want to appeal or learn more about actions taken with respect to their account, they can find information at the help centre here.”

Fark.com has lost revenue because of Google’s decision, according to Curtis, who sent out a plea for new subscribers to help it “get back on track”. It is easy to see how a smaller website could have been ruined in a similar scenario.


The offending image, via Fark

Google’s decision was not sinister, and it is obviously important that it tackles things that violate its policies. The lack of transparency around such decisions, and the difficulty getting in touch with Google, are troubling, however, as much of the media relies on the AdSense service to exist.

Even if Google doesn’t actively abuse this power, it is disturbing that it has the means by which to strangle any online publication, and worrying that smaller organisations can have problems getting in contact with it to solve any issues. In light of the recent news about Google's search results, the picture painted becomes more even troubling.

Update, 13/01/17:

Another Google spokesperson got in touch to provide the following statement: “We have an existing set of publisher policies that govern where Google ads may be placed in order to protect users from harmful, misleading or inappropriate content.  We enforce these policies vigorously, and taking action may include suspending ads on their site. Publishers can appeal these actions.”

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