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.

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New Times: David Runciman on networks and the digital revolution

The digital revolution has had two profound effects on how power is distributed – both of which squeeze the state's power.

Left-wing political parties exist to use the power of the state to rectify unjust distributions of power in society. What has gone wrong with this project? First, the political parties bit. Established parties everywhere are struggling to seem relevant to most people’s everyday concerns: they look increasingly like the tired relics of a more hierarchical age. The exception, of course, is the current Labour Party, which has opened itself up to become the biggest mass-membership party in Europe. But the trade-off has been to move away from seeing the acquisition of power as its primary purpose. These days parties can only really draw people in by offering to be vehicles for the expression of political resentment and disenchantment. But that is no way to rectify the causes of their resentment; neglecting the challenge of power usually ends up making things worse.

However, this is just a symptom of the wider problem, which is the changing nature of power. Technology lies at the heart of it. The digital revolution has had two profound effects on how power is distributed. First, it has empowered individuals, by providing them with unprecedented access to information, tools of communication and the means of expression. This is power exercised as choice: we all now have multiple ways of registering our likes and dislikes that never existed before.

Second, the digital revolution has empowered networks, creating vast new webs that span the globe. Some of them, such as Facebook, are close to being monopolies. We end up joining the networks that other people have joined, because that’s where the action is. This gives a small number of networks an awful lot of power.

Both of these developments are deeply problematic for the power of the state. The proliferation of choice makes citizens much harder to satisfy. Many of us have got used to micromanaging our lives in ways that leaves government looking flat-footed and unresponsive, no matter how hard it tries. At the same time, states face global networks that they have no idea how to control. International finance is one of these: money is information and information now has too many different ways to flow. States are getting squeezed.

The paradox is that the same forces that are squeezing the state are also giving impetus to left-wing politics. There are huge imbalances of power being created in networked societies. The monopolists are hoovering up money and influence. Personal connections count for more than ever, now that networked connections have become ubiquitous. Education is turning into a way of pulling up the drawbridge rather than moving up the ladder. One temptation for the left is to assume that the evidence of injustice will sooner or later outweigh the disabling effects of these social forces on the state. That is part of the Corbyn gamble: hang around until people are sufficiently pissed off to start demanding social-democratic solutions to their problems.

I don’t think this is going to happen. There is nothing to suggest that popular dissatisfaction will find its way back to the state as its best outlet. It will be channelled through the networks that are making the life of the state increasingly difficult.

The other temptation is to think that the left can achieve its goals by bypassing conventional social democracy and channelling its own ambitions into network politics. This is the other side of the Corbyn gamble, or at least the view of some of the people who have attached themselves to him: a new politics is coming that uses digital technology to mobilise fleet-footed networks of activists who can generate change without going through the cumbersome and time-consuming process of winning general elections. That also looks pretty wishful to me. These networks are just another vehicle for expressing personal preferences. They don’t have any means of changing the preferences of people who think differently. You need to win power to do that.

The state’s power is being squeezed by networks of empowered individuals, but these networks don’t have the kind of power necessary to do the redistributive work of the state. What is the left to do? It needs to try to find value in the fact that the state is not just another network. The right does this instinctively, by talking up the state’s security functions and championing ideas of sovereignty and national identity. But that does nothing to address the deleterious effects of living in a modern networked society, where we are swamped by personal choice but impotent in the face of corporate and financial power.

Rather than trying to harness the power of networks, the left should stand up for people against the dehumanising power of Big Data. The state isn’t Google and should not try to pretend to be. We don’t need more choice. We don’t need more efficiency of the kind that digital technology is endlessly supplying. We need protection from the mindless bureaucratic demands of the new machine age: the relentless pursuit of information, regardless of the human cost. There are limits to what the state can do but it retains some real power. It still employs real human beings; it educates them and provides them with welfare. It should do what is in its power to make the work tolerable and the education meaningful, to provide welfare in ways that don’t leave people at the mercy of faceless systems. The left needs to humanise the state.

At the moment, too much energy is being spent trying to humanise the party. We are told that people are tired of robotic, careerist politicians; they want unspun versions of people like themselves. But robotic politicians aren’t the problem; the coming age of robots is. While the party tries to feel more comfortable with itself, the effects of a networked society are running rampant. Acquiring the power of the state is still the best way to fight back. It doesn’t matter if that has to be done in an ugly, mechanised, artificial way, by careerist politicians with whom we wouldn’t choose to spend our personal time. Better an ugly, artificial politics than an ugly, artificial world. 

David Runciman is a professor of politics and the head of the department of politics and international studies at Cambridge

This article is part of a New Times collection of the future of the left. Read the other pieces here.

 

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times