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

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  1. icon
    Richard (profile), 30 Jan 2010 @ 1:52pm


    Now copyright attempts to create a limited monopoly on the use of content you created.

    No it creates a monopoly on the copying of the content (otherwise it would be useright).

    When you embed, the content shows up immediately on your website transparently for the user. On the other hand, look at the differences between embedding and copying+including. The sole difference is that in one case, you store the content on your own server and in the other, somebody else serves the content.

    It's the same as the difference between performing the conjuring trick of sawing a woman in half and actually sawing a woman in half. In both cases the appearance is the same but the underlying reality is quite different. To my knowledge no one has ever been prosecuted for performing the conjuring trick - but try the reality and you will spend most of the rest of your life in jail.

    The law will follow the reality not the appearance - and in fact in the US, when the issue came up, that was the decision. The same will happen in other jurisdictions if and when it arises in a high enough court to guarantee a competent set of judges.

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