UK Appeals Court Agrees That Clicking A Link And Opening A Website... Is Infringing

from the are-they-serious? dept

Thu, Jul 28th 2011 9:53am — Mike Masnick

Late last year there was a ridiculous ruling against news aggregator Meltwater in the UK. Meltwater, like a number of other news aggregators, pulls together headlines from various online news stories, along with brief snippets of the articles, and links to those articles, helping people find news relevant to them. It's your classic news aggregator. Meltwater focused on an enterprise market, helping companies or PR people keep tabs on what was being said about them or about topics of interest. Pretty standard stuff. But the ruling said that just headlines could be covered by copyright, and thus Meltwater infringed by simply showing headlines and links. I didn't write about it at the time, on the assumption that this was just a clueless ruling that would hopefully be overturned on appeal... but no such luck. The Appeals Court has allowed the lower court ruling to stand, meaning that anyone doing news aggregation in the UK may have to start paying newspapers for the "privilege" of linking to them.

This is, of course, ridiculous. Almost everything in the ruling is ridiculous, frankly. Let's dig into a few of the points from the original ruling, as highlighted by the Independent (first link above):

* The headlines to the various articles reproduced in Meltwater News were capable of being literary works independently of the article to which they related;

Generally speaking, in the US, we don't consider headlines to have enough creative elements to be covered by copyright independent of the article. And that seems reasonable. Does anyone honestly believe that copyright is necessary to incentivize the creation of creative headlines? The whole point of a headline is to sell the story. There's plenty of incentive there. Putting copyright on headlines makes no sense at all.

* The extracts from the articles reproduced in Meltwater News with or without the headline to the article were capable of being a substantial part of the literary work consisting of the article as a whole;

Meltwater News tried to get us as a customer two years ago, and sent us some sample reports, so I'm actually quite familiar with their "snippets." They are clearly designed to get you to click through, and not at all designed to provide a "substantial" part of the literary work. Here's a screenshot from a report they sent us:

Yeah. I'm sorry, but those "extracts" are hardly "substantial," and they clearly do not suffice as a replacement for the original.

* Accordingly each of the copies made by Meltwater News' end-users' computers in receiving the e-mail from Meltwater, opening it, and accessing the Meltwater website by clicking on the link to the article, and the copies of the article itself made when clicking on the link indicated by Meltwater News was, on the face of it, a breach of the publishers' copyright;

Read that again. Especially the last part. The copies of the article itself made when clicking a link were infringing. There's no way to respond to that other than to say that's insane. That means the entire web is infringing. Any time you open any web page, according to this ruling, you are likely infringing on the site's copyright.

* Legislation dealing with temporary copies, or fair dealing for copyright material, or Database Regulations did not allow such copying;

If so, the UK really needs to fix its copyright laws, because that's crazy.

* Thus, the end-user required a licence from NLA or the publisher in order lawfully to receive and use the Meltwater news service.

And, thus, the web dies in the UK. But now, suddenly, I'm tempted to send a bill to any UK newspaper that links to Techdirt going forward...

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Filed Under: clicks, copyright, infringement, links, uk
Companies: meltwater

54 Comments

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out_of_the_blue, 28 Jul 2011 @ 10:10am

"This is, of course, ridiculous."
And yet it's going ahead. Welcome to reality.
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DogBreath, 28 Jul 2011 @ 10:12am

I wonder if the U.K. newspapers...
are prepared to be delisted from Google.
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Mr. Smarta**, 28 Jul 2011 @ 10:14am

That's great!
Hey! I'm all for it. If anyone ever points to files on my website that I don't like, I can just replace it with my own content that I created and copyrighted, then sue them for infringement. "Sorry, your honor. But that news site pointed to infringing content. They broke the law according to the UK Appeals Court, so they don't get any sort of protection. I want my five billion euros in damages right now."

But if 'links to infringing material' are illegal, what about links *to* links? If I link to a link, then I'm off the hook. I can link to a torrent link that links to infringing material, and I'm protected. And about about links to links to links? Heck, I can do this all day.
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Paul (profile), 28 Jul 2011 @ 10:14am

But maybe a heading is just an "Industrial Prop"...
...Which would allow us to reproduce headlines of British articles in our News Aggregators as long as the news is only 15 years old...
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Amorphous Blob, 28 Jul 2011 @ 10:15am

Links
"Let's dig into a few of the points from the original ruling, as highlighted by the Independent (first link above)..."

Ohhhh, no, I'm not going to fall for that one and be guilty of infringing!
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Anonymous Coward, 28 Jul 2011 @ 10:30am

"UK Appeals Court Agrees That Clicking A Link And Opening A Website... Is Infringing"

What I want to know is if it is ok if I just "wget" it (the webpage). Or am I still a thief?
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JayTee (profile), 28 Jul 2011 @ 10:32am

Unbelievable, I'm ashamed of our courts for being so clueless.
I think the problem lies in the fact that most of the "old school" people working in the courts in the UK have no idea how the internet really works in general.
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Ninja (profile), 28 Jul 2011 @ 10:38am

No srsly, I hope this goes ahead and the web gets utterly destroyed in the UK, maybe then they'll start actually thinking before allowing any further copyright enforcement. Let the media outfits break themselves because that's what it is. By that logic Google itself will have to remove UK links from the search results rendering the British sites useless and largely unknown. Oh the chaos!

Back to Earth... And those, my friends, are the ones representing you. Don't be fooled, it's just like that everywhere ;)
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Anonymous Coward, 28 Jul 2011 @ 10:40am

I know very little about UK copyright law, but it seems like there ought to be an implied license to make a temporary copy of a webpage to the extent necessary to view it (unless it's password protected or something).

I mean, that's why they're putting it online. So you can view it.
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The Mighty Buzzard (profile), 28 Jul 2011 @ 10:46am

Re:
Just redirect output to /dev/null. Like having a printer feed directly into a shredder. I have no idea if this would be infringement since at no time was there the ability of anyone to use the copy made but it'd be interesting to find out.
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trish, 28 Jul 2011 @ 10:49am

no mike!
dont go over to the dark side... control your rage...
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Anonymous Coward, 28 Jul 2011 @ 10:51am

Re:
sad grasshopper, the point of putting things on line is to trap those freeloading freetards into commiting grievous acts of childpornoterrordrugstheivery by viewing it and then sueing the shit outa them.
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Anonymous Coward, 28 Jul 2011 @ 10:51am

Re: I wonder if the U.K. newspapers...
And afterwards, call Google spiteful and vindictive.
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A Guy, 28 Jul 2011 @ 10:53am

Goodbye world wide web in the UK. I know, it was a great run and I will miss the friends I made across the pond while you still had a world wide web there. It's sad that the inventor of the world wide web, an Englishman, will now be unable to use his invention.

However, everyone will be happy to know that most of the world is not in the UK and we can learn from this example. We can now see what happens if big content gets its way. No linking to other sites. No clicking on links because that will create a cache in your own computer. No working world wide web period.

Luckily, the underlying internet will still work. That means no www storefronts to sell your goods, but lots of IM, email, bittorent, and various other applications that enable easy sharing of content between unknown parties.

Well, at least this (probably/hopefully) won't be precedent for long because those judges really are out of touch.
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Jimr (profile), 28 Jul 2011 @ 10:54am

UK may have to start paying newspapers for the "privilege" OR NOT link at all to them.
What lesson was recently learned... those links help generate traffic and revenue for the newspapers.

All those serves should just stop linking to any UK newspaper.
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Gabriel Tane (profile), 28 Jul 2011 @ 11:01am

Clicking a link?
That's a paddlin'.
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Duke (profile), 28 Jul 2011 @ 11:05am

A few things to note. The Court was only looking at News sites. Specifically, the sites of the 6 claimant companies (including the Independent). Each of these sites have Terms and conditions that restrict their sites to non-commercial, personal use. This means that even if there is an implied licence, it would be revoked.

But the Court didn't really look at that issue. All the court was asked to rule on was (a) whether or not visiting a website (or receiving an email) could involve making an infringing copy, and (b) whether or not the temporary copying defence applies. The court found yes, for (a), and no, for (b).

They didn't say that headlines, summaries and extracts were protected by copyright, merely that, in some circumstances they could be.

However, this does leave a massive hole in copyright law, that hasn't been ruled on by the courts, that is identified in the article: ordinary internet browsing could be an infringement of copyright if there is no explicit licence.

The reason this anomaly appears in the UK is that we have neither private use or fair use exemptions/limitations. In the US you don't have to worry about this sort of thing as it would almost certainly be covered by the latter. In most other places it would be covered by the former. As with most problems with UK copyright law, this is a consequence of the restrictions being broad and general, and the defences being technology-specific.

The really odd part about this is that it could mean someone can commit an infringement merely by *receiving* an email, or visiting a website. Particularly those with big "all rights reserved" notices on them... one imagines that, following this ruling, merely seeing such a notice on a page means you have broken the law.

This is, in many ways, a worrying ruling - but the court is severely limited by what is asked of it, and what the lawyers put before it.
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Hephaestus (profile), 28 Jul 2011 @ 11:08am

Re:
yeah, and good riddance, no more annoying Brits online! Now if we can get France and Italy to follow suit, the world would be a much better place. ;)
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Mike Masnick (profile), 28 Jul 2011 @ 11:10am

Re:
I know very little about UK copyright law, but it seems like there ought to be an implied license to make a temporary copy of a webpage to the extent necessary to view it (unless it's password protected or something).

Yes. Pretty much everyone who understands this stuff would agree. But the courts argued that this is not the case in cases where someone has aggregated headlines. It's bizarre.
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md1500 (profile), 28 Jul 2011 @ 11:13am

Today is a very bad day for the open internet in the UK.
Not just this, the Newzbin ruling too.

http://www.guardian.co.uk/technology/2011/jul/28/newzbin2-filesharing-verdict-industry-react ions
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DogBreath, 28 Jul 2011 @ 11:13am

Re:
What I want to know is if it is ok if I just "wget" it (the webpage). Or am I still a thief?

Your IP address will still be linked to the request, and as we all know IP addresses are traceable to an individual, so at least expect to hear from the U.K. newspapers lawyers and how they can make the "copyright infringement" case "go away" for a modest sum.

After all, they can't have the movie and music industry scoop up all the profits from the new business model: "Not making enough money on your old, tired, outdated business? Try the new 'Sue alleged infringers until they squeal' model. Guaranteed to bring in more money than you're making now or in the future (based on the fact that your old business model is dying on the vine)."
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Anonymous Coward, 28 Jul 2011 @ 11:16am

Re: Re:
Even if the aggregator doesn't have an implied license, it would seem that the end user (i.e., the guy who clicks on the link) does.

Aside from using headlines/snippets, in a U.S. court, I think you'd have a damn hard time showing any sort of secondary liability for directing users to a newpaper's legitimate online article.
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Anonymous Coward, 28 Jul 2011 @ 11:20am

Re:
"Each of these sites have Terms and conditions that restrict their sites to non-commercial, personal use. This means that even if there is an implied licence, it would be revoked."

Not so fast. Is there any evidence that the end-users (i.e. the people clicking on the links) were not doing so for non-commercial, personal use? Otherwise, I'm not sure how the aggregator's commercial use is relevant.

"In the US you don't have to worry about this sort of thing as it would almost certainly be covered by the latter. "

True, but also by an implied license in most cases.
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NullOp, 28 Jul 2011 @ 11:36am

Links
Let it never be said some people didn't do everything in their power to undermine themselves!

I have the most fabulous website ever that has everything you could ever want but don't you dare make a link to it as that would be infringement! Does that kind of logic make sense to you? I hope not....
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Anonymous Coward, 28 Jul 2011 @ 11:48am

Re: Re: I wonder if the U.K. newspapers...
No... Google is aggregating as well. Google is evil and must pay billions to newspapers now. Don't you get it?!
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Anonymous Coward, 28 Jul 2011 @ 11:55am

Re: Re:
It's sort of a red herring here. End users require no additional license because that license is granted in the terms and conditions of most websites. The act of publishing on a website that is open to the public would be considered enough for the end user. Normal functions of a web browser (including temporary caching of webpages) wouldn't be an issue either. There isn't any commercial use, is there?

What Meltwater is doing is reselling snippets of other's content, as part of a tracking system. Looking at the snippets they sent you in the sample, I could imagine there would be enough there to make you not have to check all of those sites to understand the context in which you were listed, or to be able to ignore stories that you have read on other sites already.

If Meltwater only sent you a list of links where your reference word appears, I doubt they would have issues. But including parts of the story (significant enough to get the gist or at least context of it) seems a little in excess.

A website can opt out of Google. Can they do the same with Meltwater?
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DogBreath, 28 Jul 2011 @ 11:59am

Re: Re: Re: I wonder if the U.K. newspapers...
It's finally all clear to me now, it's all Googles fault. That and Al Gore for creating the Internet (has anyone sued him yet as an accessory to all the infringement he has enabled?)

Google = Intellectual Property Aggregator Pirates Of The Internet... A.K.A. IPAPOTI (pronounced: Eye Pee A Potty)
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Anonymous Coward, 28 Jul 2011 @ 12:08pm

Giving someone a link to click?
Oh you better believe that's a paddlin'
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Anonymous Coward, 28 Jul 2011 @ 12:11pm

Honeypot
Not falling for that one.
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DogBreath, 28 Jul 2011 @ 12:38pm

Re: Re: Re:
A website can opt out of Google. Can they do the same with Meltwater?

Yes.

UK's Times Online Starts Blocking Aggregators Hours After Aggregators Win Copyright Tribunal Ruling Against Newspapers
What's interesting, however, is that hours after this decision came out, the Times Online in the UK just so happened to update its robots.txt file to block Meltwater (along with NewsNow, who had already been blocked). Basically, it was a quiet threat: if you don't pay, we'll block you.

This article and its comments explain all about what the NLA is really after:
The NLA explains why it is going after the news aggregators
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Anonymous Coward, 28 Jul 2011 @ 1:06pm

I await one of our judges turning to the court and asking "Is there someone who can tell me what the internet is?"
and "what is a web site?" or
" mr defendant you are ordered to produce the chain the link came from you stole"
Our courts are stupid live in the 17th century and may be looking forward to being lit by gas.
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mike allen (profile), 28 Jul 2011 @ 1:08pm

Re:
Sorry had not realised i had been logged out. that was me
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Duke (profile), 28 Jul 2011 @ 1:16pm

Re: Re:
"Not so fast. Is there any evidence that the end-users (i.e. the people clicking on the links) were not doing so for non-commercial, personal use?"

This wasn't an infringement proceeding. No one was being sued over any specific infringement. It was a declaratory judgment asking whether or not Meltwater and their end users might need a licence.

NLA took Meltwater to the Copyright Tribunal to argue over a licence agreement (it's a lower-than-a-court thing for sorting out this stuff) but the Tribunal realised it couldn't rule on whether or not end users need a licence. This question was then referred to the High Court, hence the case.

The court ruled that some end users (at least those excluded by the T&Cs) would need a licence. It's also worth noting that Meltwater didn't appeal - the PRCA did; which is an association of PR people; i.e. people who use Meltwater's service as part of their job.
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Duke (profile), 28 Jul 2011 @ 1:21pm

Re: Re:
I know quite a bit about UK copyright law and this (as mentioned elsewhere) is besides the point.

The Court did not say "there is no implied licence", they said that some sort of licence (implied or explicit) is needed when visiting a website.

The case itself is specifically aimed at websites with T&Cs forbidding commercial (or non-personal) use. The PRCA (who appealed, not Meltwater) is an association of PR Consultants who use Meltwater's service for commercial purposes (i.e. commercial end user). The court said that, in these cases, if the substantiality and originality criteria for copyright were met by the excepts and/or headlines, the end users would need a separate licence.

The whole thing is full of "if"s and "may"s - this wasn't an infringement proceeding, but a declaration (see my post below).

[Also, for the record, IANALY]
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hmm (profile), 28 Jul 2011 @ 1:23pm

ah well
I was going to go to some news-sites in the UK like sky.com/news and bbc.co.uk/news (and possibly some newspaper websites themselves) but now I can't because I'll be infringing by "copying" their content onto my PC.....

Never mind I guess I'll just have to get my news via huffington and techdirt eh?
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hmm (profile), 28 Jul 2011 @ 1:27pm

also
The judge mentioned the NAME of meltwater...doesn't that mean the judge infringed on meltwater's IP?

That could be a hilarious chain of lawsuits waiting to happen....meltwater sues the court system, the court system can't appeal because they'd need to mention meltwater's name and in doing so would be accused of more and more infringement until eventually someone would have to send the TSA over to stick their fists up the judges ass "just in case" everything was terrorist related and the judge may one day go on holiday to the USA....
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hmm (profile), 28 Jul 2011 @ 1:30pm

the steps
step 1. say all end-users are "infringing" and must have an individually negotiated licence for each website they visit.

step 2. All-out civil war across the UK as people are imprisoned for trying to buy things from amazon. (Civil war here has happened before don't say it won't happen again)

step 3. ?????

step 4. profit
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Anonymous Coward, 28 Jul 2011 @ 1:31pm

job security?
Ever wonder if the judges, layers, etc that push this blatantly wrong law are just looking after their job security? After all, someone will have to correct the mess that they create.
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Zot-Sindi, 28 Jul 2011 @ 1:44pm

Re: "This is, of course, ridiculous."
"Welcome to reality."

about time you showed up

all this did was reassures me that universe is still running smoothly in the clockwork regularity of stupidity and perversion I always suspected, it's nothing new
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eclecticdave (profile), 28 Jul 2011 @ 4:16pm

Re:
But the Court didn't really look at that issue. All the court was asked to rule on was (a) whether or not visiting a website (or receiving an email) could involve making an infringing copy, and (b) whether or not the temporary copying defence applies. The court found yes, for (a), and no, for (b).

Well, IANAL but for reference here is the bit of UK Copyright Law that refers to temporary copies :

Section 28A: Making of temporary copies.

Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work;

and which has no independent economic significance.

To me, that clearly applies to the activity of browsing the web. So the web isn't "broken in the UK".
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Anonymous Coward, 28 Jul 2011 @ 4:17pm

Re: Re: Re: Re: I wonder if the U.K. newspapers...
Yeah. Who else will pay Murdoch's lawyer bills?! Google to the rescue!
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Anonymous Coward, 28 Jul 2011 @ 4:19pm

Re:
What if I lmgtfy? It clicks for me.
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Anonymous Coward, 28 Jul 2011 @ 11:11pm

Re: job security?
Ever wonder if the judges, layers, etc that push this blatantly wrong law are just looking after their job security?

What? Predatory lawyers and judges looking after their own self interests? Tell me it isn't so!
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WysiWyg (profile), 29 Jul 2011 @ 1:04am

Who's copying?
I don't get it. If I click a link, then the server makes a copy of the page and sends to me, right?

And if said server is the newspapers server, then that shouldn't be an infringing copy?

Or have I totally missed the point here?
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PaulT (profile), 29 Jul 2011 @ 1:57am

Re: Honeypot
The Guardian, the well respected newspaper that recently exposed the phone hacking scandal, is a copyright honeypot? Hmmm...
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martyburns (profile), 29 Jul 2011 @ 2:34am

Re: Re:
Thankfully France is slowly taking themselves offline..
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Anonymous Coward, 30 Jul 2011 @ 12:33pm

Re: Re:
Yeah, but the story only creates outrage when you ignore the facts and go for the "web banned in the UK" type story. It's why Mike Masnick is talented, he is able to get people to buy that sort of BS and run with it.

Makes you wonder how much else on this site is made up or created by willfully ignoring the laws and rulings already out there.
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Anonymous Coward, 31 Jul 2011 @ 11:45am

Re: Re: Re:
Yeah, but the story only creates outrage when you ignore the facts...

It seems to me that you're the one trying to get people to ignore what's going on. It's as if you're somehow involved with it and don't want it exposed. Who's paying you?
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Gareth, 2 Aug 2011 @ 6:07pm

Re: Re:
That's not correct Mike. The implied license argument doesn't work for Meltwater because the websites in question each had express provisions in their T&Cs regarding "commercial user". There's no way an implied term can oust an express term (since the test for whether to imply a term is whether the contract requires it to give it business efficacy, which it can't if the parties are deemed to have reached an express agreement on the question).

Actually, also worth noting that only PRCA (which is not an aggregator but a body representing End Users) appealed the High Court judgment. The judgment is bizarre by ignoring the implied license point as regards End Users simply browsing the web, so let's bash it for the right reasons, eh?

Also, substantiality in the UK is a matter of qualitative as well as quantitative sampling, so I don't really see how you can say they extracts weren't substantial because they aren't a replacement for the original - that's irrelevant.
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ken, 2 Aug 2011 @ 10:39pm

without going in to the detail of the ruling, I'm assuming that the aggregator, Meltwater, was receiving money for providing this linking service, which would seem to be the real issue of assumption of copyrights of the pages linked to. In that case, even just providing the the headline (which would only be provided to a paid subscriber)instead of that person independently searching for it.

Of course, in ruling that even a headline is copyrightable material, this creates more problems than it solves. That, however, is not the concern of the courts who deal in strict interpretation, but one for the lawmakers to patch up.
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cwolf20, 3 Aug 2011 @ 6:09am

So they want the world to go back to predating the internet. Where papers had to fight to increase readership/monthly bills from the maximum number of people available to read the local paper.
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Launfall (profile), 3 Aug 2011 @ 12:24pm

Copyrighted headlines?
The ruling seems to imply that merely quoting a headline is a copyright infringement. A sensible extension of that logic would imply that no news outlet can write a headline without first checking to make sure that it has never been written before. Or be in violation of another news outlet's copyright. I can see Murdoch suing the Guardian...or maybe even his own papers. What fun!
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Jann Uber, 3 Aug 2011 @ 12:44pm

Click a link and commit an infringment
Sounds like Murdock having it both ways: click on a newspaper site and get a fine; invade peoples real privacy and the bought-off judges rules your way. If the 18th Century should ever return these judicial minds will be well matched.
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Autie Author, 26 Oct 2011 @ 5:50pm

Don't go off on one just yet.
You have all made the same mistake that the court did. Namely, forgetting about the 2003 amendments to the Copyright, Designs, and Patents Act 1988, which clearly state that 'any temporary, transient copy made by a machine process is non-infringing.' Trust me, I'm an auto-didact cognoscenti of UK copyright law.
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