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.

Photo: Getty
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We're asking the wrong questions about the Google “anti-diversity memo”

Which sex is better at what skills is less important than which skills we value in the first place. 

Yes, I feel sorry for the Google employee who has been fired for writing an "anti diversity manifesto" and circulating it within the company. (Guess what? It leaked.) Losing your job is painful, and doing it in public is even more so. But the conversation around this is heading in such an unproductive direction (do women suck at maths?) that I can't resist wading in.

I agree with the writer that these issues are hard to talk about, but that pushback comes from both directions. Look at the crap Mary Beard is wading through for trying to inject some facts into a discussion about the racial composition of Roman Britain. Nicholas Nassim Taleb keeps honking about "diversity genes" and refusing to listen to evidence that contradicts him. But in his mind, he's Mr Science - sorry, Professor Science - and she's Madam Arts-Subject.

This matters, because when it comes to diversity, there are fact-based positions on both sides. Yet there is a certain strand of Rational Internet Thinker (let's be honest, mostly men) who solemnly tells everyone that we Must Stick To The Facts while advancing deeply ideological stances, which only happen to look "natural" because they are so embedded in our culture. 

But back to the subject at hand. Here's the recap: the memo was headlined  "Google’s Ideological Echo Chamber" and its writer's firing will be taken as confirmation that his thesis was true. Ironically, this will be done by the same section of the right which usually has no problem with firing at will and normally thinks that HR should be a brutally Darwinian process. (Looked at from that perspective, of course Google would fire someone who brought such criticism on the company.) But now there are Principles involved. Probably Free Speech is under attack. Political Correctness may even have Gone Mad. Social Justice Warriors are on the march. Before it's all placards as far as the eye can see, instead I would like to look at what was actually said, and whether it's an argument with any merit. 

In essence, the memo argued that the gender imbalance of staff in tech companies like Google is primarily the result of biological, not cultural differences. ("They’re universal across human cultures," it argued. "They often have clear biological causes and links to prenatal testosterone".) There are differences in ability between the sexes, the writer said, and that's why most top programmers are men. Men like numbers, and the numbers like them right back.

The memo added:

Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership. Discrimination to reach equal representation is unfair, divisive, and bad for business.

The section about typically female traits is also interesting, because of a couple of points the writer picks out.

"Women, on average, have more...

- Openness directed towards feelings and aesthetics rather than ideas. Women generally also have a stronger interest in people rather than things, relative to men (also interpreted as empathizing vs. systemizing).

- These two differences in part explain why women relatively prefer jobs in social or artistic areas. More men may like coding because it requires systemizing and even within SWEs, comparatively more women work on front end, which deals with both people and aesthetics.

- Extraversion expressed as gregariousness rather than assertiveness. Also, higher agreeableness. This leads to women generally having a harder time negotiating salary, asking for raises, speaking up, and leading. Note that these are just average differences and there’s overlap between men and women, but this is seen solely as a women’s issue. This leads to exclusory programs like Stretch and swaths of men without support.

- Neuroticism (higher anxiety, lower stress tolerance).This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.  

Well, SOMEONE has been reading their Simon Baron Cohen. The first point is a distillation of Baron Cohen's argument about "male brains" being better at understanding systems, and "female brains" being better at feelings - which he extends to say that autistic traits might be an "extreme male brain". Unsurprisingly, there are other scientists in the field, such as Cordelia Fine and Rebecca Jordan-Young, who find a lot of the neuroscience of sex difference quite flaky.

I'm not a neuroscientist, but from a lay perspective, my take is that yes, there are some biological differences between the average male and female brain, but that these pale beside a) the way our brain architecture is shaped by stimuli (like years of being told you're rubbish at maths) and b) the overall effect of culture (eg companies which value presenteeism, or make it hard for women to return after having children, or cover up for senior men who are repeated sexual harassers etc etc). 

The "higher agreeableness" point was dealt with by Sheryl Sandberg in Lean In. Women aren't stupidly not asking for raises or being assertive in the office because they are delicate little flowers. One of the reasons they are more agreeable at work is because they face heavier penalties if they are not. As Sandberg formulates it: "Success and likeability are positively correlated for men and negatively for women. When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.” Women are nicer because there are more negative consequences for them if they are not nice.

The last point about neuroticism is bleakly funny, because while women might report more anxiety, men commit suicide in far greater numbers. Which gender is really more susceptible to stress and anxiety? Women talking more about their mental health on "Googlegeist" is being held against them here, when possibly one of the reasons that more men kill themselves is because of the stigma of talking about their feelings.

Overall, the memo makes some compelling points, but it also chucks in a lot of stuff that "everyone knows" about sex differences, which isn't scientifically supported, and also some evolutionary psychology about "protecting females" which strays into the kind of rhetoric found on MRA sites. Its understanding of male and female work patterns can also be naive, for example:

"Yes, in a national aggregate, women have lower salaries than men for a variety of reasons. For the same work though, women get paid just as much as men. Considering women spend more money than men and that salary represents how much the employees sacrifices (e.g. more hours, stress, and danger), we really need to rethink our stereotypes around power."  

I mean, doesn't this just raise a huge number of questions?

How often do men and women do the same work, and for what reasons might they not? (Clue: women do far more unpaid care work and housework.) Are women spending that money on themselves, or are they running household budgets, which is an unpaid project-management task they are doing alongside any paid work? What an individual finds stressful is also entirely subjective.

The author chucks in a reference to "Marxist intellectuals" but doesn't seem to have read any of the vast and fascinating literature on unpaid care and its interaction with paid work. I'd recommend starting with The Second Shift or Wife Work. Angela Saini's Inferior is a good recent choice, too, on women's overlooked contributions to science.

When I talk about feminism with self-styled rationalist men, this dynamic comes up again and again. They will present my arguments as mere anecdote and emotion, which - sad shake of the head - is contradicted by the available evidence. When you point to peer-reviewed studies, or great ethnographies, supporting your point, which they haven't bothered to read, they steam on regardless. It makes the contest deeply unequal. Internet skeptic types talk about the need to engage with writers they don't agree with, and the importance of free and open debate, but often actually don't want to read the contrary view. 

 

***

If you want to read more about the discussion of the science of sex differences which has arisen as a result of this memo, then this piece by Slate Star Codex is interesting - it argues that interest in STEM subjects, not ability, might be the key difference between the sexes. It also completely misses the point. 

Here's a thought experiment. Say you were recruiting for a spoon-juggler. Your advert would probably mention "needs to juggle spoons". But, almost certainly, there would be other skills involved. Turning up to performances on time. Keeping your spoon inventory in check. Not turning up drunk. Not stealing forks from the fork-juggler. 

This is what the argument that women can't succeed in tech because they are innately bad at the skills needed to succeed in tech sounds like to me. We know that many of the early programmers were women, back when the job was considered to be largely secretarial. (Go watch Hidden Figures for more on this, and also because it's just a lovely film and I am so happy for Mahershala Ali and Taraji P. Henson.) We know that the fastest way to depress wages in a job is to feminise its workforce. It's not unreasonable to wonder if we've constructed the whole idea of "success in tech" in such a way that it makes men's success look natural and pre-ordained. Yes, you need to be able to code to be a coder. But there are other skills you need too. 

Yonatan Zunger, who recently left Google, makes this argument better than I could. And he seems to own a pair of testicles, so you know he's more rational and objective than me:

"Essentially, engineering is all about cooperation, collaboration, and empathy for both your colleagues and your customers. If someone told you that engineering was a field where you could get away with not dealing with people or feelings, then I’m very sorry to tell you that you have been lied to. Solitary work is something that only happens at the most junior levels, and even then it’s only possible because someone senior to you — most likely your manager — has been putting in long hours to build up the social structures in your group that let you focus on code.

All of these traits which the manifesto described as “female” are the core traits which make someone successful at engineering. Anyone can learn how to write code; hell, by the time someone reaches L7 or so, it’s expected that they have an essentially complete mastery of technique. The truly hard parts about this job are knowing which code to write, building the clear plan of what has to be done in order to achieve which goal, and building the consensus required to make that happen.

All of which is why the conclusions of this manifesto are precisely backwards. It’s true that women are socialised to be better at paying attention to people’s emotional needs and so on — this is something that makes them better engineers, not worse ones."

As I said on Twitter, this is a pattern we see again and again - a high status job is coded as "male", requiring "male" traits, to justify men's dominance of it. The same thing happens in politics: we are assured that politicians need to be "strong" and "decisive", when many of the most successful male politicians today have incredible people skills. Jeremy Corbyn makes time for everyone he meets, hugging them and posing for endless selfies. Sadiq Khan has that Queen Mum ability to remember your name and a key fact about you. What's the real difference between the Clintons? Bill demonstrated huge empathy and made people he was talking to feel special; Hillary didn't. But still, maybe men dominate politics because they are just more aggressive and ambitious. Yeah, OK. 

Tech suffers from a similar silent rewriting of core competencies to flatter its mostly male leaders.

We have all these conversations about how hard it is for Mark Zuckerberg to make the leap to being a frontman CEO because he's a maths guy, not a people guy. We treat this like he's doing an amazing project of personal growth. We don't go, "wow, they really lowered the bar for CEOs to let someone without some of the key skills have a go at it". Or, "his poor colleagues, having to make up for the stuff he's not naturally gifted at". 

There was a similar reaction when Sergey Brin and Larry Page brought in Eric Schmidt when it was time for Google to "grow up". We didn't say, "How embarrassing, they have to find someone to counteract their deficiencies." We said: "Smart move. Not every human can possess all skills, it's wise to have a range of experience and aptitudes at the top of your company."

So this, for me, is the most interesting takeaway from the Google memo. "Do women suck at maths" is a complicated question, and I'm not sure how far answering it will move the conversation forwards. "Have we structured society so that those competitions between the sexes that men can win are deemed to be the most important competitions?" is a better one.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.