Dutch Judges Plagiarize, Potentially Infringe, Blog Post In Decision About Copyright

from the pot,-kettle dept

A little while ago, we had a rather long and heated discussion over the question of whether or not embedding/hotlinking is infringement when the original content is hosted/served from elsewhere (in an authorized manner). I cannot see a truly defensible legal explanation for how that is infringing (the content exists solely in two places -- the original server and the browser of the user, both of which are authorized). However, some lawyers clearly disagree. Over in the Netherlands, in fact, a court has disagreed and claimed that embedding is, in fact, infringement. While I think this is a poor ruling that makes little sense, there's something more interesting in this particular ruling (sent in by an anonymous reader). It turns out that, in explaining why embedding should be considered infringing, the judges plagiarized the exact wording of a blog post by a Dutch lawyer.

Now, plagiarism and copyright infringement are two different (though sometimes overlapping) things, but it does seem a bit ironic -- and even under Dutch copyright law, this bit of copying could be seen as infringement as well. Apparently, the judges directly cut and pasted the following two sentences:
"in case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience."
The exact quote above came from a blog post by lawyer Douwe Linders, who had no idea the judges were going to copy it. While it seems like a simple quote like this should be perfectly legal in any context, let alone a legal decision, the discussion of this notes that while Dutch copyright law does let you quote short bits of content from others for a variety of reasons, it requires attribution. In this particular case, no attribution was provided.

What makes it even worse, of course, is that the quoted/plagiarized/infringing bit might not even be accurate. As we discussed in our own post on the subject, there appears to be significant disagreement over whether or not embedding authorized content could be seen as infringing -- and apparently, there is a widespread debate about it in Dutch legal circles as well, saying that it is far from readily agreed upon in the legal literature.

Filed Under: copyright, embedding, hotlinking, netherlands, plagiarism

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  1. icon
    Richard (profile), 29 Jan 2010 @ 2:58pm

    Re: Re: Re: Re: Re:

    "You are correct, but you do control that it appears as part of your webpage. The image (or whatever) owner does not control the code on your webpage, and would have to take specific negative action to deny you use of the image.

    Your actions and your actions alone cause that image to be part of your website (by writing the code)."

    I cannot agree with you. The appearance of the image on your webpage is a result of the co-operation of your code, the viewer's browser code and the original image hoster's code. All three have to agree to create the result. Any one of the three can prevent the process from happening.

    If the public understood this point then no-one would claim that any kind of linking was infringement (just like the window example). If they do not then that is a BIG PROBLEM that needs to be fixed by education because the public's ignorance of these technicalities creates all kinds of opportunities for online fraud.

    People like yourself who argue that the law should follow the appearance rather than the underlying physical facts are encouraging this ignorance to continue and are therefore aiding and abetting online fraud.

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