Category Meltwater

Strange things happen in courts

This is odd.

The Supreme Court has handed down its judgement in the endless NLA case, and it’s a little strange.

They have also referred the case on to the European Court of Justice, to ensure that the agony is prolonged a little longer.

Among the many oddities is that this judgement, weird though it is, has little bearing on the original case. The big issues, already decided, have not been challenged. What the Supreme Court was left with was a tiny thin sliver of an issue, a hair already split so finely it seemed incapable of any further subdivision.

As it turns out that was wrong, and so as well as reversing the judgement of the lower courts on this issue (and in my view also the intent of the law) it has opened up a new, gaping, hole in the governance of the internet and the ability for copyright law to have meaningful effect online.

The question, focuses on an exception to copyright, created in the European Copyright Directive, which authorises certain kinds of “temporary copies” which are made as content travels across the internet. I have written about it before, so for background suggest you read that piece.

The exception was created to avoid a situation in which the copies made, for example, in a router as it passes data from one machine to another, were infringing and therefore became the focus of legal actions or problems. The narrow nature of the exception can be seen in its wording:

1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.

Not many things pass all those tests. See my previous article for more thoughts on that.

Jonathan Sumption, the judge who wrote the ruling, thinks otherwise.

Many lawyers have been paid many pounds to argue about the assertions and interpretations he makes, so suffice to say for now that they’re not accepted universally, least of all by me in the context of the conversations I was involved with when article 5.1 was being drafted and debated. I will return to them in more detail later.

Perhaps his most telling comment is in his clause 36. “This seems an unacceptable result”, he says, in reference to the possibility that the law makes certain things illegal. It suggests he has swallowed the nonsensical and scare-mongering “browsing is illegal” rhetoric whole. But if judgements are to be made, in part, based on what a judge thinks “seems acceptable” in the law, then surely that judge could find a better career in politics, writing and passing laws.

Lord Sumption has constructed his own convoluted route through the arguments and case law, his own analysis of some of the technical matters and arrived at a startling and – to me – wrong-headed and perverse conclusion that article 5.1 offers few practical restraints or limits to the consumption and use of infringing material online.

The law is written to say that in limited circumstances a very tiny exception to copyright law is created. Sumption’s judgement broadens those circumstances to include almost any activity by end-users on the internet.

My immediate question is what, in that case, he thinks all those words and conditions in 5.1 actually restrict? If the article’s purpose is not the one that is described in its recitals, and apparently made explicit in its wording, and debated endlessly prior to its introduction, what is its practical effect and purpose?

The usual disclosure, I am a former Chairman of the NLA

Meltwater loses again: the black knight rises

Meltwater have followed up their defeat in a series of British courts with a defeat in an American court. AP sued them for copying AP stories, and they won. In the opinion which accompanied the summary judgement (I’ll look for it online, I have an emailed copy), the judge is scathing about almost every point which Meltwater raised.

Nonetheless, like the Black Knight in Monty Python’s Holy Grail. even with all their arms and legs cut off by every court they have visited, Meltwater remain confident of success. They “strongly disagree” with the court. They “look forward to having this decision reviewed by the Court of Appeals”. Despite Judge Denise Cote comprehensively dismissing their claim that they are a search engine, Meltwater “is especially troubled by the implications of this decision for other search engines”. Regardless of a comprehensive and analytical explanation by the judge of her reasons for rejecting Meltwater’s claim that their activities are covered by fair use, they say that her judgement “misapplies the fair use doctrine”.

Does all this bluster sound familiar? Just look back at their response to their successive and equally comprehensive defeats in a series of British courts. Despite it all, they still don’t seem to grasp that building a business on other people’s property, without their agreement and without paying them, just isn’t reasonable or legal.

Still they can take comfort from the doughty Black Knight. “Tis but a scratch”, he says as he loses his arms. “It’s just a flesh wound” when one of his legs goes.

“We are confident [the next court] will see the case a different way” says Jorn Lyseggen of Meltwater, as brave and confident as any knight.

We’ll see.

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