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

from the pot,-kettle dept

Fri, Jan 29th 2010 10:30am — Mike Masnick

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

27 Comments

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Ima Fish (profile), 29 Jan 2010 @ 10:53am

"and placement causes the material to reach a new audience..."

I've written before that hotlinking is not infringement.

In that blog post I argued that, functionally speaking, hotlinking and direct linking are of the same nature, and if hotlinking constitutes infringement, so does direct linking.

Here we have a lawyer arguing that merely causing copyrighted material to reach a new audience is infringement. Think about that. Playing your CD or DVD for a friend is infringement. Linking to a website you love, infringement. Linking to a song you like on Amazon is infringement.

I know some will say I'm stretching what the lawyer wrote. I am not. The copyrighted material at issue is being offered on a server for the world to see. So the lawyer is not talking about providing links to infringing material. He's talking about providing links to perfectly legal material. And to him providing those links is infringement.

So if you have a perfectly legal copy of a DVD and you cause it to reach a new audience by playing it for a friend, you're infringing copyright. That's insane.
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The Anti-Mike (profile), 29 Jan 2010 @ 11:42am

Re:
Here we have a lawyer arguing that merely causing copyrighted material to reach a new audience is infringement.

Not within reach, but as an integral part of your website. It isn't a link to some other place, it isn't a pointer, an included / framed / embedded item is part of your published site. While you may not control the content, you have chosen to make it a part of your page rather than just providing a link to it (click here to see the video).

The judge (or the lawyer who wrote the quote) got it right. It is all about what the visitor to the website sees, not the mechanics of how it was done.
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hitchhikers guide ot the galaxy, 29 Jan 2010 @ 11:50am

so if yo have to use a login and pass to view
it isnt public there fore is not a publication
enjoy insanity at its finest as lawyers look to try new ways to be needed as there soon to be shortened uses are becoming more and more apparent
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:Lobo Santo (profile), 29 Jan 2010 @ 11:52am

Re: Re:
Hello Igtor!
I see you've been working on making spurious arguments that sound plausible. Not bad. Have you passed the turing test yet?
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Comboman (profile), 29 Jan 2010 @ 12:08pm

Re:
I would tend to agree with you on direct linking, but not hotlinking. Direct linking merely provides a pointer to someone else's content. Hotlinking takes someone else's content and places it in a new context, essentially creating a derivative work. Depending on the context of the new work (commentary, parody, etc), it may or may not be protected by fair use, but certainly there is at least the potential for infringement. The fact that no copying took place does not necessarily mean that no infringement occurred (for example, public performance of a work only licensed for private performance does not involve the creation of a new copy).
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Mr Big Content, 29 Jan 2010 @ 12:09pm

Good Guys vs Bad Guys
Copyright laws are supposed to be to prevent bad guys doing their bad stuff, it’s not targeted at the good guys doing their good stuff. If the good guys had to abide by every single provision of the same laws meant for the bad guys, they’d never get anything done.

And all this talk of “rights” and “due process” and stuff for bad guys—if they won’t respect the law, why should the law respect them?
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Hulser (profile), 29 Jan 2010 @ 12:16pm

Re: Re:
Agreed. While at a technical level, there may be no distinction between linking and imbedding, imbedding just seems wrong to me. Maybe it's closer to copyright than infringement because you're potentially confusing the user as to the source of the content. A moron in a hurry knows that if they click on a link, they're moving to a new location on the WWW. But I think quite a few people, when viewing imbedded content, would look at the address bar in their browser and assume (quite naturally I think) that the source of that content is that site. I supposed you could mitigate that issue by how you imbed the content, but the idea of imbedding more content that would be allowed as a fair use snippet just seems to problematic to me.
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btr1701 (profile), 29 Jan 2010 @ 12:18pm

Re: Re:
> The judge (or the lawyer who wrote the quote)
> got it right. It is all about what the visitor
> to the website sees, not the mechanics of how
> it was done.

I can't speak to Danish law but what you just wrote is not even remotely accurate regarding American copyright law. The U.S. copyright statute is not "all about" what people see and experience on web sites. Such concepts aren't even mentioned in the statute, let alone constitute what the law is "all about".
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Anonymous Coward, 29 Jan 2010 @ 12:19pm

Re: Good Guys vs Bad Guys
I agree, why should the law respect the bad guys (the RIAA, CRIA, corrupt judges who plagiarize, etc...) who create laws that unfairly benefit them and then break those laws and get away with it.
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Anonymous Coward, 29 Jan 2010 @ 12:34pm

Re: Re: Re:
TAM spanks his monkey in the UK.
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Derek Bredensteiner (profile), 29 Jan 2010 @ 12:42pm

Re: Re: Re:
I'll give TAM the benefit of the doubt here (gasp) and assume he meant "got it right" in the sense of what TAM believes the law should be.

My largest concern with his arguments is not the disregard for U.S. copyright statute, nor the lack of understanding of the technical workings of such things, but in consistently misappropriating responsibility. I mean, he seems to understand some of the technical aspects, but then ignores them when placing responsibility. Specifically in embedding; if I embed an image from somewhere else, I have 0 control over the content of that image. That somewhere else has control over it. I think we agree up this point, so why is it my responsibility for the content of that frame/image/whatever?

I'll attempt an analogy. Let's say I have a building that I own, and there's a large mural behind my building. If I put up large glass windows in my building so that people walking in front of it can see the mural behind, have I infringed on that mural artist's copyright?
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Dark Helmet (profile), 29 Jan 2010 @ 12:54pm

Re: Re:
"an included / framed / embedded item is part of your published site"

Hmm, I'm not sure where to come down on this one. Your argument does seem a bit tricky, however. Doing the judging by the end-user's perception is always going to be tricky. Why not just go by what the eff is physically happening.

After all, you know the old example: if you brough a digital camera back to medieval times and started showing it off, they would accuse you of heresy and witchcraft, neither of which would be accurate (or would they!!???).
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Hulser (profile), 29 Jan 2010 @ 1:01pm

Re: Re: Re: Re:
If I put up large glass windows in my building so that people walking in front of it can see the mural behind, have I infringed on that mural artist's copyright?

I think your analogy is not accurate in the sense that people looking out your window would not naturally assume that you painted the mural. Not so with imbedding.
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Derek Bredensteiner (profile), 29 Jan 2010 @ 1:01pm

Re: Re: Re:
Ah, perhaps we can have plagiarism pretty easily here without copyright infringement? For example:

I created this image. I made it in Photoshop.

That's plagiarism right? To stretch it further (and back to relevance in embedding), would placing an embedded image on your site as if it's your content, without attribution, be plagiarism?
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The Anti-Mike (profile), 29 Jan 2010 @ 1:50pm

Re: Re: Re: Re:
Specifically in embedding; if I embed an image from somewhere else, I have 0 control over the content of that image. That somewhere else has control over it.

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).
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AC, 29 Jan 2010 @ 2:00pm

perhaps...
...embedded links should have attribution notes like quoted material the way the judges lifted quote should have had.
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Anonymous Coward, 29 Jan 2010 @ 2:04pm

Re: Re: Re:
It depends; did you achieve the time travel via an unholy alliance with dark forces? If so, then I would have to say Yes.
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ChrisB (profile), 29 Jan 2010 @ 2:14pm

Re: Re: Re: Re: Re:
So what then about the Mural argument? That is the same analogy as hotlinking.

I built (coded) a window (hotlink) for people to see the mural (img) from my home (site). Would this then infringe on the copyright of the artist as you argue that it infringes on the owner of the img? The mural artist could (at any time) paint a different mural, just like the owner of the image being hotlinked.
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The Anti-Mike (profile), 29 Jan 2010 @ 2:15pm

Re: Re: Re: Re: Re: Re:
Nope. The mural is outside, it is incidental to your window. I think of the window / mural thing as a link.

Now, if you constructed a building and had the mural as one of the walls, such that it was an integral part of the building... ;)
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Dark Helmet (profile), 29 Jan 2010 @ 2:19pm

Re: Re: Re: Re:
"It depends; did you achieve the time travel via an unholy alliance with dark forces?"

Please, EVERYTHING I do is via unholy alliance with dark forces....better known as Chipotle burritos....
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Anonymous Coward, 29 Jan 2010 @ 2:29pm

Re: Re: Re: Re: Re: Re: Re:
Linking and embedding are the same thing. Move along.
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Richard (profile), 29 Jan 2010 @ 2:37pm

Re: Re: Re: Re: Re:
"I think your analogy is not accurate in the sense that people looking out your window would not naturally assume that you painted the mural. Not so with imbedding."

That is only true at present because most people don't understand the internet but do understand plate glass.

However before the invention of good quality plate glass those viewing the mural might well assume that it was in your house. Also what if you used one of the optical devices utilised by magiscians to create the illusion? A lot of people might believe that the image was on your wall - but no court would accept that argument when shown how it was done.
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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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PrometheeFeu (profile), 30 Jan 2010 @ 11:23am

Linking and embedding are not the same thing. I'm sorry I have to agree with that decision, but I think it makes a lot of sense. Think about the functional difference between linking and embedding: When you link, you show a little piece of text on which the user can click to go access the content somewhere else. 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. The difference is purely technical in nature. Now copyright attempts to create a limited monopoly on the use of content you created. Now, don't you agree that if there is harm done in copying and displaying content, there has to be harm in hot-linking? I'm not saying that there is harm done. But it's pretty clear to me that the harm in the two cases is the same.
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Richard (profile), 30 Jan 2010 @ 1:52pm

Re:
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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Anonymous Coward, 31 Jan 2010 @ 2:24am

Clearly embedding, something that is only possible with online content, is something that is pushing at the borders of established law and case history.

A thought: since it's only possible with online content, one might come to the conclusion that the mere act of putting something online constitutes permission to embed it.
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