The Supreme Court case which didn't break the internet

Do you "copy" a website just by reading it? No, thankfully.

The Supreme Court has ruled on NLA v PRCA, the case which could break, or save, the internet.

Some background: the Newspaper Licensing Agency took Meltwater, a media monitoring firm to court over whether or not it had to pay licence fees for sending links to its customers. Traditionally, monitoring firms had to pay the licensing agency for the right to distribute clippings of newspapers, because photocopying a newspaper is clearly an act of copying that requires a license. But as everything moved online, that clarity became blurred; and hence, a court case was brought.

We first reported on the case after it made it to the High Court in August, when an astonishingly bad precedent was set. It was ruled that viewing a website on a computer was an act of copying which required a license, just as if you had photocopied a newspaper. Although the ruling was made with regards to a specific scenario, it was general enough to apply to general use of the internet. Clicking on a link, even one which lead to entirely legal content, would, under that ruling, constitute copyright infringement. At the time, I said it "[put] at risk the basic skeleton of the internet."

Thankfully, the case was appealed to the Supreme Court (by the PRCA, a trade body of which Meltwater is a member), where it was ruled today that temporary copies made solely for the purpose of viewing copyrighted material are not infringing. The decision extends copyright exemption to "temporary copies made for the purpose of browsing by an unlicensed end-user", according to the judgement. It is based on European law which "identified very clearly the problem which has arisen" in this case, but which didn't quite specify that this particular method of viewing was covered. Once it is accepted that that law does cover the temporary copies made in this case, "much of the argument which the courts below accepted unravels."

Writing for the majority, Lord Sumption also accepted that the previous ruling would have had wide-ranging effects:

The issue has reached this court because it affects the operation of a service which is being made available on a commercial basis. But the same question potentially affects millions of non-commercial users of the internet who may, no doubt unwittingly, be incurring civil liability by viewing copyright material on the internet without the authority of the rights owner, for example because it has been unlawfully uploaded by a third party. Similar issues arise when viewers watch a broadcast on a digital television or a subscription television programme via a set-top box.

Since the ruling has implications for European law, it has been referred to the European Courts of Justice, which will now consider the question before any final ruling is issued by the Supreme Court.

Until then, and hopefully after, you can continue to use your computers as you were. Carry on.

Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Getty
Show Hide image

A quote-by-quote analysis of how little Jeremy Hunt understands technology

Can social media giants really implement the health secretary’s sexting suggestions? 

In today’s “Did we do something wrong? No, it was social media” news, Health Secretary Jeremy Hunt has argued that technology companies need to do more to prevent sexting and cyber-bullying.

Hunt, whose job it is to help reduce the teenage suicide rate, argued that the onus for reducing the teenage suicide rate should fall on social media companies such as Facebook and Twitter.

Giving evidence to the Commons Health Committee on suicide prevention, Hunt said: “I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem.”

Pause for screaming and/or tearing out of hair.

Don’t worry though; Hunt wasn’t simply trying to pass the buck, despite the committee suggesting he direct more resources to suicide prevention, as he offered extremely well-thought out technological solutions that are in no way inferior to providing better sex education for children. Here’s a quote-by-quote analysis of just how technologically savvy Hunt is.

***

“I just ask myself the simple question as to why it is that you can’t prevent the texting of sexually explicit images by people under the age of 18…”

Here’s Hunt asking himself a question that he should be asking the actual experts, which is in no way a waste of anybody’s time at all.

“… If that’s a lock that parents choose to put on a mobile phone contract…”

A lock! But of course. But what should we lock, Jeremy? Should teenager’s phones come with a ban on all social media apps, and for good measure, a block on the use of the camera app itself? It’s hard to see how this would lead to the use of dubious applications that have significantly less security than giants such as Facebook and Snapchat. Well done.

“Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.”

Erm, is there? Image recognition technology does exist, but it’s incredibly complex and expensive, and companies often rely on other information (such as URLs, tags, and hashes) to filter out and identify explicit images. In addition, social media sites like Facebook rely on their users to click the button that identifies an image as an abuse of their guidelines, and then have a human team that look through reported images. The technology is simply unable to identify individual and unique images that teenagers take of their own bodies, and the idea of a human team tackling the job is preposterous. 

But suppose the technology did exist that could flawlessly scan a picture for fleshy bits and bobs? As a tool to prevent sexting, this still is extremely flawed. What if two teens were trying to message one another Titian’s Venus for art or history class? In September, Facebook itself was forced to U-turn after removing the historical “napalm girl” photo from the site.

As for the second part of Jezza’s suggestion, if you can’t identify it, you can’t block it. Facebook Messenger already blocks you from sending pornographic links, but this again relies on analysis of the URLs rather than the content within them. Other messaging services, such as Whatsapp, offer end-to-end encryption (EE2E), meaning – most likely to Hunt’s chagrin – the messages sent on them are not stored nor easily accessed by the government.

“I ask myself why we can’t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening.”

Jeremy, Jeremy, Jeremy, Jeremy, can’t you spot your problem yet? You’ve got to stop asking yourself!

There is simply no algorithm yet intelligent enough to identify bullying language. Why? Because we call our best mate “dickhead” and our worst enemy “pal”. Human language and meaning is infinitely complex, and scanning for certain words would almost definitely lead to false positives. As Labour MP Thangam Debbonaire famously learned this year, even humans can’t always identify whether language is offensive, so what chance does an algorithm stand?

(Side note: It is also amusing to imagine that Hunt could even begin to keep up with teenage slang in this scenario.)

Many also argue that because social media sites can remove copyrighted files efficiently, they should get better at removing abusive language. This is a flawed argument because it is easy to search for a specific file (copyright holders will often send social media giants hashed files which they can then search for on their databases) whereas (for the reasons outlined above) it is exceptionally difficult for algorithms to accurately identify the true meaning of language.

“I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn’t happened to date.”

Leaving aside the fact that social media companies constantly come up with solutions for these problems, Hunt has left us with the burning question of whether any of this is even desirable at all.

Why should he prevent under-18s from sexting when the age of consent in the UK is 16? Where has this sudden moral panic about pornography come from? Are the government laying the ground for mass censorship? If two consenting teenagers want to send each other these aubergine emoji a couple of times a week, why should we stop them? Is it not up to parents, rather than the government, to survey and supervise their children’s online activities? Would education, with all of this in mind, not be the better option? Won't somebody please think of the children? 

“There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.

Alas, if only we could say the same for you Mr Hunt.

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