UK ruling makes Internet browsing a copyright risk

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.

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.

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...

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?

More detailed information about the case is here:

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

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...) When you have a social contract, you don't need enforcement, just the enablement of enforcement against badness.

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.)

Surely that would have implications for search engine spiders.

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.

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.

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