Copyright-maximalist judges plagiarize lawblogger in opinion

The judges in a Dutch copyright case plagiarized a legal blogger in writing their opinion. The case held that framing and embedding is a form of copyright infringement (a maximalist copyright view that I find pretty dubious as a policy matter), and the relevant section from the opinion, "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" is identical to text that appeared earlier on SOLV lawyer Douwe Linders's blog. Dutch copyright's fair dealing rules allow for some quotation without permission, but passing off someone else's text as your own is plagiarism, and weakens the fair dealing claim as well.

Judges plagiarize blog posting in copyright case

Opinion (PDF)

Blog posting by SOLV lawyer Douwe Linders

Previously:

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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MrJM

“Ik ben de Wet!”
dainel

Do the Dutch legal system uses precedents like the English and American ones?
Anonymous

It also makes no sense. How is a link displaying content in the context of the website with the link.

Usually a link opens in a new window or navigates you away from the site with the link.

A server side include or iframe that displays content from another site on a site would fit the definition. A link to another site does not.

That reasoning would suggest that footnotes are publication as well.
neurolux

Nice pic for Lewis Carroll’s birthday!
cymk

Nothing like plagiarism to make it sound like you know nothing about the topic at hand. Any one know any Dutch? I would love to read it if there was a translation available.
Anonymous

So long as the (video/page/document) in the imbeded link is HOSTED at a server licensed to the copyright holder, they have complete control of how and to whom it is distributed. Framing a link to it can’t be considered an infringement when all distribution is STILL controlled by the copyright holder. There are good public policy reasons why TITLES aren’t copyrighted, and the IP address of a file shouldn’t be covered by copyright for pretty much the same reasons.
Anonymous

The idea that linking (which is what framing really is) is an infringement is just SILLY. If the document is hosted by the copyright holder then THEY still control access to it, which is the core of copyright. The IP is actually analagous to the title of the document, which is NOT protected by copyright for exactly the same public policy reasons that we wouldn’t want linking to be considered an infringement.
Anonymous

It gets even stranger: Linders was the attorney representing the defendant in this case. Yet he did not make this statement to the court. What’s more, the court made this statement in passing (“obiter dicta”, for you lawyers) just before saying “but the defendant didn’t use embedded linking at all so this issue is moot”.

The reason why this causes a big brouhaha is that the Dutch collective rights society Buma/Stemra has been trying to collect levies from anyone that embeds a Youtube music video in a Dutch website. Their argument: you need to pay us for new publications, and an embedded use is a new publication. Thus this court statement pretty much plays into their hands.

Arnoud Engelfriet, Dutch IT lawyer