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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Fark.com’s censorship story is a striking insight into Google’s unchecked power

The founder of the community-driven website claims its advertising revenue was cut off for five weeks.

When Microsoft launched its new search engine Bing in 2009, it wasted no time in trying to get the word out. By striking a deal with the producers of the American teen drama Gossip Girl, it made a range of beautiful characters utter the words “Bing it!” in a way that fell clumsily on the audience’s ears. By the early Noughties, “search it” had already been universally replaced by the words “Google it”, a phrase that had become so ubiquitous that anything else sounded odd.

A screenshot from Gossip Girl, via ildarabbit.wordpress.com

Like Hoover and Tupperware before it, Google’s brand name has now become a generic term.

Yet only recently have concerns about Google’s pervasiveness received mainstream attention. Last month, The Observer ran a story about Google’s auto-fill pulling up the suggested question of “Are Jews evil?” and giving hate speech prominence in the first page of search results. Within a day, Google had altered the autocomplete results.

Though the company’s response may seem promising, it is important to remember that Google isn’t just a search engine (Google’s parent company, Alphabet, has too many subdivisions to mention). Google AdSense is an online advertising service that allows many websites to profit from hosting advertisements on its pages, including the New Statesman itself. Yesterday, Drew Curtis, the founder of the internet news aggregator Fark.com, shared a story about his experiences with the service.

Under the headline “Google farked us over”, Curtis wrote:

“This past October we suffered a huge financial hit because Google mistakenly identified an image that was posted in our comments section over half a decade ago as an underage adult image – which is a felony by the way. Our ads were turned off for almost five weeks – completely and totally their mistake – and they refuse to make it right.”

The image was of a fully-clothed actress who was an adult at the time, yet Curtis claims Google flagged it because of “a small pedo bear logo” – a meme used to mock paedophiles online. More troubling than Google’s decision, however, is the difficulty that Curtis had contacting the company and resolving the issue, a process which he claims took five weeks. He wrote:

“During this five week period where our ads were shut off, every single interaction with Google Policy took between one to five days. One example: Google Policy told us they shut our ads off due to an image. Without telling us where it was. When I immediately responded and asked them where it was, the response took three more days.”

Curtis claims that other sites have had these issues but are too afraid of Google to speak out publicly. A Google spokesperson says: "We constantly review publishers for compliance with our AdSense policies and take action in the event of violations. If publishers want to appeal or learn more about actions taken with respect to their account, they can find information at the help centre here.”

Fark.com has lost revenue because of Google’s decision, according to Curtis, who sent out a plea for new subscribers to help it “get back on track”. It is easy to see how a smaller website could have been ruined in a similar scenario.


The offending image, via Fark

Google’s decision was not sinister, and it is obviously important that it tackles things that violate its policies. The lack of transparency around such decisions, and the difficulty getting in touch with Google, are troubling, however, as much of the media relies on the AdSense service to exist.

Even if Google doesn’t actively abuse this power, it is disturbing that it has the means by which to strangle any online publication, and worrying that smaller organisations can have problems getting in contact with it to solve any issues. In light of the recent news about Google's search results, the picture painted becomes more even troubling.

Update, 13/01/17:

Another Google spokesperson got in touch to provide the following statement: “We have an existing set of publisher policies that govern where Google ads may be placed in order to protect users from harmful, misleading or inappropriate content.  We enforce these policies vigorously, and taking action may include suspending ads on their site. Publishers can appeal these actions.”

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