
UK ruling makes Internet browsing a copyright risk - jamesbritt
http://blog.meltwater.com/uk-ruling-makes-internet-browsing-a-copyright-risk-rendering-innocent-acts-of-millions-illegal
======
cHalgan
The west is learning fast from the east (meaning east europe) :)

The communist countries were setup in such way that everybody living a normal
life was definitely breaking some law. Hey even using a fax machine was
illegal (but companies needed to have it to operate a business).

So, to get you, the government (and some random state company) needed just to
put you on the list and you are arrested.

~~~
SoftwareMaven
I always think of John Adams' quote:

 _"It is more important that innocence be protected than it is that guilt be
punished, for guilt and crimes are so frequent in this world that they cannot
all be punished. But if innocence itself is brought to the bar and condemned,
perhaps to die, then the citizen will say, "whether I do good or whether I do
evil is immaterial, for innocence itself is no protection," and if such an
idea as that were to take hold in the mind of the citizen that would be the
end of security whatsoever."_

If you are damned if you do and damned if you don't, what's the incentive to
be in the "don't* category?

------
flipbrad
The ruling not only causes absurdity/doesn't work, it's wrong in law to boot.
I hope this goes to the UK Supreme Court. It's very dangerous: it effectively
means that if I look at a picture on the floor I'm not breaking copyright
(because I'm not making a copy), but if I view in on a public server I can be
held to be in breach of copyright. Just because there are technological steps
involved in delivering the picture to my eyes, copyright law suddenly applies,
and hard. Copyright is not meant to limit the reading of works, merely their
reproduction where such reproduction is marketable/commercially relevant.
Browsing a webpage must be viewed as the sort of merely transient "copying"
that is not a restricted act. There is no permanence in the act and the viewer
doesn't take possession of a copy with which he can then compete in the
marketplace which the rightsholder is supposed to have a state-granted
monopoly over.

Wrong in law: The Ecommerce Directive (2001/29) says that, subject to certain
conditions, copies made during transmission by a third party or in your ram,
cache, etc, are not reproductions covered by copyright law. The leading case
on this is called Infopaq, which summarises: \- the act is temporary; \- it is
transient or incidental; \- it is an integral and essential part of a
technological process; \- the sole purpose of that process is to enable lawful
consumption of the work or a transmission in a network between third parties
by an intermediary of a lawful use of a work or protected subject-matter; and
\- the act has no independent economic significance.

The recital (explanatory notes) to this exemption is this: "The exclusive
right of reproduction should be subject to an exception to allow certain acts
of temporary reproduction, which are transient or incidental reproductions,
forming an integral and essential part of a technological process and carried
out for the sole purpose of enabling (...) lawful use of a work or other
subject-matter to be made. To the extent that they meet these conditions, this
exception should include acts which enable _browsing_ as well as acts of
_caching_ to take place, including (...)"

The court in Meltwater says that the copies made by the users (which, it says,
are unlicensed and thus infringing copies) are not exempt. Its reasoning
hinges mostly on the fourth point. It uses circular logic despite accusing the
defence of using the same: "A person making a copy of a webpage on his
computer screen will not have a defence under s. 28A CDPA simply because he
has been browsing. He must first show that it was lawful for him to have made
the copy. The copy is not part of the technological process; it is generated
by his own volition. The whole point of the receipt and copying of Meltwater
News is to enable the End User to receive and read it. Making the copy is not
an essential and integral part of a technological process but the end which
the process is designed to achieve. Storage of the copy and the duration of
that storage are matters within the End User's control. It begs the question
for decision whether making the copy is to enable a lawful use of the work.

This judgement presupposes that a copy is being deliberately made by the user;
therefore it 'begs the question' whether the steps leading to that are
excepted or not (because this is not lawful consumption). This is of course
very flawed: when viewing a .jpg or Meltwater news from a remote server, we
are not creating a meaningful copy of it, any more than receiving a broadcast
on your TV set. That only happens once you hit Ctrl+S. Because you're just
viewing (consuming, not copying) what's placed in plain sight, any
RAM/cache/whatnot is in fact incidental to lawful consumption. The court
thinks that you cannot consume digital work without meaningfully copying it -
because it exists once on the server and they think it can exist
simultaneously on many, many different users' terminals. But that is no more
'copying' (in the copyright sense) than happens on TVs in broadcasting (since
you ignore all incidental technologically necessary 'copies' that lead up to
the display of the work), and is precisely the opposite of what the law (Art
5(1) Ecommerce Directive) says.

They consider Infopaq, but all too superficially. From Infopaq: "23. According
to the Højesteret, it is not disputed in this case that consent from the
rightholders is not required to engage in press monitoring activity" - loading
the websites so they can be read (and summarised by hand, or whatever else you
want to do that doesn't store a copy of the words). Infopaq objects to the OCR
and printing. I don't know if/why this was not flagged up in Meltwater.
Infopaq seems poorly considered in that case.

Absurd: \- If the mere display of a .JPG were a copy, each re-rendering of the
page (scrolling, zooming, AJAX refresh, etc) would be a separate potential
infringement, wouldn't it? In fact, each refresh (60 times a second) would be
creating an infringing copy. \- everyone (even rightsholders) clearly think
there is no infringement possible by mere browsing, otherwise if the traffic
lights system goes ahead anyone clicking on a redlighted link is immediately
an infringer (because they will be making infringing copies of unlicensed
content). It would then be absurd for google to even list the site. In fact
Google wouldn't even be able to re-spider it from the instant it is
redlighted. Infringement detection agents couldn't safely visit it. Nobody
could. That is clearly not what the PRS is suggesting with their traffic light
scheme, unless I'm vastly mistaken (or that is in fact their cunning plan). \-
if the publisher of a work doesn't want her copy of the work to be available
to the public, she can simply stop making it available to the public. If
nobody has actually made a copy which they can go on using or serving to the
public themselves (which I don't deny would be a restricted act), the work
stops being available to the public. If I circumvent the way she sets up her
property to reflect her wishes, just to be able to cast eyes upon the work,
she at the very least has the Computer Misuse Act to remedy the trespass onto
her server. She does _not_ require copyright infringement remedies for that.
Horses for courses thus combine to ensure total respect for the publisher
without necessitating an expansion of copyright law that were it isn't
required - viewing files on a server (nor, for reasons stated in my preceding
emails, is it welcome there either). \- the picture on floor vs. picture on
webpage dichotomy mentioned in my first paragraph: if it's can lawfully be
retrieved and displayed (by looking at the picture on the floor, or requesting
it, quite legitimately, from a server) then copyright shouldn't apply, but in
Meltwater, it applies to the latter.

Any reading of the law that extends the law to where it serves no purpose at
all, cannot befit the purpose of the law being read (and it sure ain't
necessary in a democratic society, ney'ver). Even if this were not the plain
meaning of the law (which I showed above that it is), _if_ for any reason a
judge were to seek a purposive reading of the law (I have, for example, heard
of Art 8 - right to private and family life - being applied in more surprising
ways that protecting your right to browse the web without courts having the
ability to find you in breach of the law for every page you visit - Branduse v
Romania was about smelly prisons, ffs, not being able to forward your music,
or deeplinks and headlines to your daughter - this allows the judge to use the
Human Rights Act as authority for a strained, non-obvious interpretation of
the law in order to respect european human rights law), I also think it be
possible to read the text appropriately.

~~~
Silhouette
Just to follow up your note on the E-commerce Directive, is that the same
point of European law that England accidentally/conveniently forgot to enact
in its local interpretation?

I've heard what I suspect is the same issue raised before, in the context of
End User Licence Agreements. The question of how EULAs can have any legal
standing if you don't buy the software directly from the copyright holder was
raised: if a contract necessarily involves consideration in both directions,
and you get nothing of value from the copyright holder in return for
"agreeing" to their often onerous EULA after you've completed the purchase of
your software from a third party, what right do they have to impose any
conditions on you at all? The answer being debated was that by merely running
the software in the normal manner for which it was purchased, you are
inevitably making copies (in RAM etc.) and thus copyright law applies and you
require a licence. Ah, but making transient copies in the course of normal use
is excluded from copyright by the point of law we're discussing, right? Except
that unless something changes since I last read about this, that point of law
hasn't actually been legislated in England, and thus this shady argument for
EULAs having some sort of legal weight isn't completely DoA.

Apologies for not citing the source of this argument. It was a rather
interesting and well written paper, by a law student IIRC, but I regret that I
didn't bookmark it at the time and have never been able to find it again
since.

------
ZoFreX
So you can't find out if you've infringed copyright by making a cached copy
(and if your browser is creating a re-usable, loadable at another time, HTML
format backup of the page for cache purposes, it is a copy) until after
loading the page and reading the copyright notice?

If only there were a way to transmit data ahead of the page body itself to
indicate whether you should be permitted to store a cached copy of the page or
not...

~~~
xorglorb
You could use a HTTP header, for example:

    
    
        X-Cache-Permission: Allow

~~~
ataggart
Or the one provided by the spec:

Cache-Control: no-store

------
zmmmmm
I wonder whether protocol and technical aspects provide a defense to this. If
I request a page from your web site and I get back 200 OK, is that not some
kind of permission? If then I receive an instruction to cache the page (or
elements thereof), is that not some kind of encouragement to keep a copy? If
the page has a permissive robots.txt, or even by choice no robots.txt, does it
not indicate that visitors are welcome to come and store the copy for indexing
purposes?

~~~
jamesbritt
You would think so, but technical arguments seem to get ignored in these
matters. For example, so-called "deep linking". Controlling direct access to
Web resources is a solved technical problem, and if someone has a URL that
responds to a basic GET then, hey, it must be intended for that; that's how it
works. Yet it still ends up as fodder for endless legal manuevers.

------
simonbrown
More detailed information about the case is here:

<http://www.bailii.org/ew/cases/EWCA/Civ/2011/890.html>

~~~
justincormack
Much more useful.

The key issues upheld are:

(1) The headlines to the various articles reproduced in Meltwater News are
capable of being literary works independently of the article to which they
relate. (2) The extracts from the articles reproduced in Meltwater News with
or without the headline to that article are capable of being a substantial
part of the literary work consisting of the article as a whole. (3)
Accordingly the copies made by the end-user's computer of (a) Meltwater News
(i) on receipt of the email from Meltwater, (ii) opening that email, (iii)
accessing the Meltwater website by clicking on the link to the article and (b)
of the article itself when (iv) clicking on the link indicated by Meltwater
News are and each of them is, prima facie, an infringement of the Publishers'
copyright. (4) No such copies are permitted (a) by s.28A CDPA dealing with
temporary copies, or (b) as fair dealing within s.30 CDPA, or (c) by the
Database Regulations. (5) Accordingly, the end-user requires a licence from
NLA or the Publishers, whether or not in the form of the WEUL in order
lawfully to receive and use the Meltwater News Service.

Which is not about the user copying but Meltwater's summaries and distribution
of them being illegal. Google should note this and immediately stop crawling
the internet in the UK as this behaviour is clearly illegal as headlines are
creative works.

Stupid...

~~~
notahacker
I wouldn't be surprised to hear that Google had numerous discreet licencing
agreements with UK copyright trolls in place already

A key difference between Meltwater and Google News is that Meltwater is
charging the end user for the excerpts they scraped (I'm not going to contact
their account managers to try to understand their pricing structure, but I
strongly suspect that it includes a component related to level of usage and or
quantity of targeted content served). Meltwater's service is more analogous to
Factiva and LexisNexis, whose licencing structure is almost certainly more
favourable to the publishers.

It ought to be of some concern to other providers of SaaS feed readers, media
analytics and the like though.

------
aj700
This is how law works in Britain.

Things are done to give the police the tools to fight whatever social ill
currently obsesses the political class, however clumsily drawn.

They'll arrest protesters at an event and let them go 48 hours later with no
intention of ever charging them. Politicians really want indefinite internment
of terrorists. Because they're probably right that nobody will abuse it.

No privacy for drivers.

The age of consent of 16 DOESN'T exist to stop 13/14/15 year olds having sex.
It is set at 16 to make (Victorian) child prostitution dead easy to convict.
Covertly having sex with any age of teenager who is discreet would be easy.
Pimping them would get me in real trouble though.

It is assumed that all these powers will never be abused, because there is so
much undetected and unprosecuted crime that the police don't have the time or
inclination to abuse them. But they are there when they need them. The British
police would never be so ungentlemanly, like those nuclear sub crews who
protect their launch enablers with bicycle locks.
([http://tvtropes.org/pmwiki/pmwiki.php/UsefulNotes/UltimateDe...](http://tvtropes.org/pmwiki/pmwiki.php/UsefulNotes/UltimateDefenceOfTheRealm))
When you have a social contract, you don't need enforcement, just the
enablement of enforcement against badness.

~~~
Nick_C
> nuclear sub crews who protect their launch enablers with bicycle locks.

I can't see anything about bicycle locks on that website. Do you have another
link? (Very interesting, by the way.)

------
sorbus
Would an effective way to forestall this be to set up a website and start
suing anyone who visits it from the UK for copyright infringment? I would
expect that such lawsuits would be laughed out of court, or strongly ruled in
favor of the defendant, especially if you started out by suing fairly powerful
or influential people.

(Also, is it legal to read books in the UK? The brain and eyes make a
temporary copy of any inputs, and memory could be considered to be a
derivative work.)

~~~
iuhyghjkl
There is already lots of precedent that viewing a web page is making a copy.
The law on child pornography is that it's only an offense to produce an image
- since it's assumed that the person making the image is the one harming the
child and banning reading/viewing something would have freedom of speech
implications.

There have been many convictions of people viewing images where the
prosecution made the case that the browser had created an image (albeit a
copy)

~~~
lotharbot
> _"The law on child pornography is that it's only an offense to produce an
> image"_

In the UK, "simple possession of indecent photographs of children" is a
criminal offense [0]. US law is fairly similar [1].

[0] <http://www.rogerdarlington.co.uk/sexonnet.html#UKlaw> \-- see Criminal
Justice Act of 1988 [1]
[http://www.missingkids.com/missingkids/servlet/PageServlet?L...](http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1476)
\-- part (b) of the first cited law

~~~
SoftwareMaven
But the difference between possession and creation is very large.

------
7952
Surely that would have implications for search engine spiders.

~~~
epochwolf
It would mean all UK websites would no longer be indexed. Great way to shoot
yourself in the foot.

~~~
Groxx
Ya know... maybe that's the way to resolve this. Google should simply "drop"
all their .uk data. The _immense_ public outrage should get something done
pretty quickly.

~~~
ZoFreX
Honestly I think the only way to deal with the BS that we're being handed at
the moment is complete and total compliance. Turn off browser caching for uk
websites, deindex all uk sites from search engines, and drop Set-Cookie
headers for everyone in Europe. One hour of the internet like that and
everyone will realise how stupid these laws they're bringing in are.

------
lambada
Is there a more neutral source for information on the impact of this?
Intuitively I'm thinking that the precedent set is more complex than is made
out here.

~~~
pbhjpbhj
They give an OutLaw link in the article, they're pretty highly regarded but
I've not checked the background to verify that their article is independent of
the OP's link or the companies involved.

------
null_para
I seriously think that most of the copyright folks dont get what is
information law and policy. Especially, in Europe. People still think "bits"
as "atoms". I guess it will take at least a decade to bring significant change
in the way they think as old guard will be leaving the post.

------
tobylane
Nothing that outlaws so many people is ever actively dealt with, the whole
world learnt that lesson from the Prohibition of the 20s.

