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.

Warren K Leffler at Wikimedia Commons
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"She wore a USB cord instead of a necklace": whatever happened to Cyberfeminism?

The movement was young, energetic, educated, and art school-heavy. Above all it was “positive”: both cyber-positive and sex-positive.

Sometime in the late 1990s, I met someone else called Joanna Walsh. The fact that this is also my name drew me to study her closely. We were about the same age. She worked in the tech side of the arts world, with which I was also connected via a loose network of zines, "comix" and journals. Instead of a necklace, she wore a USB cord. She knew how to program. She was a cyberfeminist. 

Cyberfeminism had been a word since 1991, coined separately by the British philosopher Sadie Plant (once profiled painfully in the Independent on Sunday as the “IT girl for the 21st Century”) who was then running the Cybernetic Culture Research Unit with fellow philosopher Nick Land, and by the Australian art collective VNS Matrix

In September 1997, the First Cyberfeminist International meet-up took palce in Germany, and the artist Cornelia Sollfrank writes that its members "agreed not to define the term" cyberfeminist, but to understand it through negative. As a result, the Old Boys Network, a cyerfeminist alliance founded at the event, wrote “100 Anti-Theses” in languages from Croatian to Indonesian. The theses defined cyberfeminism by what it is not: “cyberfeminisme n'est pas une pipe… cyberfeminism is not post-modern… cyberfeminismo no es rock'n’roll” - as a gap, a lack, but also posited this newly-available "cyber" space as a place into which bodies could be projected, and within which they could be remade.

Nineties cyberfeminism drew heavily on contemporary feminist postmodernist theory, including the work of Julia Kristeva and Luce Irigary. As with any radical movement concerned with identity politics, there was a tension between repurposing or remixing stereotypes and the near-impossible task of destroying them and creating new archetypes. The work of trans cyberfeminist Sandy Stone is indicative of much of the movement’s gender-fluid stance: the Old Boys Network's founding aim was to “contribute[s] to the critical discourse on new media, especially gender-specific aspects,” by members who self-select “if you call yourself a woman.” 

"A Cyberfeminist Manifesto for the 21st Century” by VNS Matrix.

As Sadie Plant explains in her book Zeros and Ones—and as Elena Ferrante demonstrates through her (anti?) heroine Lila in the Neapolitan novels, who is an early coder — computing was once considered “women’s work’”. Like Plant, MIT Professor and digital theorist Sherry Turkle described women as digital natives, particularly suited to its “bricolage” methods. The VNS Matrix art collective, by contrast, saw women as biological infiltrators of “Big Daddy Mainframe”. 

Like other strands of 1990s feminism, whether they were prefixed with “Riot” or “Spice”, Cyberfeminism was “girl”-oriented. Zines were called gURL, and Geek Girl, and in 1995 Linda Dement made a “Cyberflesh Girlmonster”. The movement was young, energetic, educated, and art school-heavy. Above all it was “positive”: both “cyber-positive” and “sex-positive”. Cyberfeminism’s enthusiasm, its refusal to self-define, could be exhausting, but is it exhausted? The OBN's calendar takes us up to 2003, the function feminism timeline to 2005. In 2012 a reassessment of the movement titled Cyberfeminism 2.0, was published. What happened in the interim?

What happened is, we all became users. The internet is so embedded in our lives as to make the prefix “cyber” tautologous as “road traffic” or “free gift”, but use of a medium implies neither expertise or control. Not only have women become notoriously scarce in programming, but, as technology becomes more complex, everyone is losing access to the basic means of production. JR Carpenter, a digital artist who continues to make “handmade” web pages, expands on Lori Emerson’s 2014 Reading Writing Interfaces: From the Digital to the Bookbound:

“‘The iPad works because users can’t know how it works.’ Reading the web on an iPhone, iPad, or similar device, readers do not have the option of viewing the page source. The iPad provides consumers with access to materials created by others, but cannot easily be used as a tool in the handcrafting of new materials.”

As internet consumers we are all feminised, invited to complete ourselves through purchase: “The boundary between empowerment/subjectivity/agency and market-driven formation of self, which in fact has never been clear, becomes more nebulous,” wrote Radhika Gajjala’s and Yeon Ju Oh in their introduction to Cyberfeminism 2.0. “I’d rather be a cyborg than a goddess,” declared Donna Haraway in her Cyborg Manifesto, published in 1991, Cyberfeminism’s year zero. But who are our cyborgs now? Default-female Siri and her cohort of servers with a smile? The internet’s “Mechanical Turks’”, mostly women in low-pay jobs whose hand-input is disguised as technology? 

The net can be an echo chamber of reinforced thought as, from Twitter to porn sites, users seek out communities that reflect their offline opinions. “Networked knowledge,” wrote David Weinberger  in a recent essay in the LARB, “is inextricable from its social context,” and can even offer a new, improved platform for offline prejudice. In April, the Guardian catalogued what everyone already knew: that’s it’s primarily their women (followed by non-white) correspondents whose work attracts trolling, abuse and threats.

An unusual feature of Cyberfeminism was how quickly it began to bemoan its own demise. Gashgirl/Doll Yoko/Francesca da Rimini of VNS Matrix wrote as early as 1997:

“after 6 years of surfen sibapussy g-slime as one of the vns matrix pussy posse i don't feel particularly inspired to comment anymore on cyberfeminism/s [if u dont have nothing new to say don't repeat yrself]… cept to say that as far as i rememba things vns matrix never *seriously* wanted to rule the world ..or women to dominate the net...necessarily.... .. but, as artists, we were serious bout usin strategies like irony 'n inversion of cultural stereotypes to raise some of the many issues around women and technology.”

As such, though the internet has been of inestimable benefit as a platform and network for feminist activists (at least those who can access the equipment), “online feminism” is not absolutely identifiable with Cyberfeminism. 

Like Ginger, Posh, Baby, Sporty and Scary, cyberfeminism never did "tell you what I want, what I really really want" but, during a brief window of blue-sky thinking as to what the net could be, artist Cornelia Sollfrank writes that “simply attaching the happy 'cyber' hype to the term feminism in the early 90s opened up immense potential. The synonym for an unreflective, euphoric understanding of new technologies, which 'cyber' definitely is, breathed new life into the debates around gender and feminism.”

Now, Cyberfeminism remains live because rejection of definition is its founding feature. Many 90s cyberfeminist groups and artists are still practicing, including Subrosa, Studio XX, and forums on OBN and elsewhere remain active. Members of the CCRU and VNS Matrix can be found working in academia and the arts, and contemporary theorists include Professor Radhika Gajjala who writes particularly on "subaltern" and south Asian "Cyberselves".“Cyberfeminism does not express itself in single, individual approaches but in the differences and spaces in between,” writes Sollfrank. “All continue to write the story.”

But now, when I use Google to search for “Joanna Walsh”, even in conjunction with institutions with which we were both linked, the only name I find is my own. 

This piece is part of our themed Internet Histories week. See the rest of the stories here