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.

ILONA WELLMANN/MILLENNIUM IMAGES, UK
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How the internet has democratised pornography

With people now free to circumvent the big studios, different bodies, tastes and even pubic hair styles are being represented online.

Our opinions and tastes are influenced by the media we consume: that much is obvious. But although it’s easy to have that conversation if the medium we are discussing is “safe for work”, pornography carries so much stigma that we only engage with it on simple terms. Porn is either “good” or “bad”: a magical tool for ­empowerment or a destructive influence on society. Many “pro-porn” campaigners shy away from nuanced critique, fearing it could lead to censorship. “Anti-porn” campaigners, convinced that porn is harmful by definition, need look no further than the mainstream tube sites – essentially, aggregators of clips from elsewhere – to gather examples that will back them up.

When we talk about the influence of porn, the emphasis is usually on a particular type of video – hardcore sex scenes featuring mostly slim, pubic-hairless women and faceless men: porn made for men about women. This kind of porn is credited with everything from the pornification of pop music to changing what we actually do in bed. Last year the UK government released a policy note that suggested porn was responsible for a rise in the number of young people trying anal sex. Although the original researcher, Cicely Marston, pointed out that there was no clear link between the two, the note prompted a broad debate about the impact of porn. But in doing so, we have already lost – by accepting a definition of “porn” shaped less by our desires than by the dominant players in the industry.

On the day you read this, one single site, PornHub, will get somewhere between four and five million visits from within the UK. Millions more will visit YouPorn, Tube8, Redtube or similar sites. It’s clear that they’re influential. Perhaps less clear is that they are not unbiased aggregators: they don’t just reflect our tastes, they shape what we think and how we live. We can see this even in simple editorial decisions such as categorisation: PornHub offers 14 categories by default, including anal, threesome and milf (“mum I’d like to f***”), and then “For Women” as a separate category. So standard is it for mainstream sites to assume their audience is straight and male that “point of view” porn has become synonymous with “top-down view of a man getting a blow job”. Tropes that have entered everyday life – such as shaved pubic hair – abound here.

Alongside categories and tags, tube sites also decide what you see at the top of their results and on the home page. Hence the videos you see at the top tend towards escalation to get clicks: biggest gang bang ever. Dirtiest slut. Horniest milf. To find porn that doesn’t fit this mould you must go out of your way to search for it. Few people do, of course, so the clickbait gets promoted more frequently, and this in turn shapes what we click on next time. Is it any wonder we’ve ended up with such a narrow definition of porn? In reality, the front page of PornHub reflects our desires about as accurately as the Daily Mail “sidebar of shame” reflects Kim Kardashian.

Perhaps what we need is more competition? All the sites I have mentioned are owned by the same company – MindGeek. Besides porn tube sites, MindGeek has a stake in other adult websites and production companies: Brazzers, Digital Playground, Twistys, PornMD and many more. Even tube sites not owned by MindGeek, such as Xhamster, usually follow the same model: lots of free content, plus algorithms that chase page views aggressively, so tending towards hardcore clickbait.

Because porn is increasingly defined by these sites, steps taken to tackle its spread often end up doing the opposite of what was intended. For instance, the British government’s Digital Economy Bill aims to reduce the influence of porn on young people by forcing porn sites to age-verify users, but will in fact hand more power to large companies. The big players have the resources to implement age verification easily, and even to use legislation as a way to expand further into the market. MindGeek is already developing age-verification software that can be licensed to other websites; so it’s likely that, when the bill’s rules come in, small porn producers will either go out of business or be compelled to license software from the big players.

There are glimmers of hope for the ethical porn consumer. Tube sites may dominate search results, but the internet has also helped revolutionise porn production. Aspiring producers and performers no longer need a contract with a studio – all that’s required is a camera and a platform to distribute their work. That platform might be their own website, a dedicated cam site, or even something as simple as Snapchat.

This democratisation of porn has had positive effects. There’s more diversity of body shape, sexual taste and even pubic hair style on a cam site than on the home page of PornHub. Pleasure takes a more central role, too: one of the most popular “games” on the webcam site Chaturbate is for performers to hook up sex toys to the website, with users paying to try to give them an orgasm. Crucially, without a studio, performers can set their own boundaries.

Kelly Pierce, a performer who now works mostly on cam, told me that one of the main benefits of working independently is a sense of security. “As long as you put time in you know you are going to make money doing it,” she said. “You don’t spend your time searching for shoots, but actually working towards monetary gain.” She also has more freedom in her work: “You have nobody to answer to but yourself, and obviously your fans. Sometimes politics comes into play when you work for others than yourself.”

Cam sites are also big business, and the next logical step in the trickle-down of power is for performers to have their own distribution platforms. Unfortunately, no matter how well-meaning your indie porn project, the “Adult” label makes it most likely you’ll fail. Mainstream payment providers won’t work with adult businesses, and specialist providers take a huge cut of revenue. Major ad networks avoid porn, so the only advertising option is to sign up to an “adult” network, which is probably owned by a large porn company and will fill your site with bouncing-boob gifs and hot milfs “in your area”: exactly the kind of thing you’re trying to fight against. Those who are trying to take on the might of Big Porn need not just to change what we watch, but challenge what we think porn is, too.

The internet has given the porn industry a huge boost – cheaper production and distribution, the potential for more variety, and an influence that it would be ridiculous to ignore. But in our failure properly to analyse the industry, we are accepting a definition of porn that has been handed to us by the dominant players in the market.

Girl on the Net writes one of the UK’s most popular sex blogs: girlonthenet.com

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times