HomeMy WebLinkAbout2007-02-09_Newspaper_Articles_re_Healing_Our_Island_Website �v CW Lincoln S.T. Ashida
Corporation Counsel
Harry Kim
Mayor •' '
Gerald Takase
• : Assistant Corporation
'•;;•M•+'' Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622
February 9, 2007
Mr. William Kenoi
Executive Assistant
Office of the Mayor
25 Aupuni Street
Hilo, Hawaii 96720
Dear Mr. Kenoi:
Re: Posting of Newspaper Articles on the Healing Our Island Website
You requested a legal opinion regarding 1) whether the posting of newspaper
articles related to the ice epidemic, and having website links to relevant newspaper
articles, on the county's Healing Our Island ("HOI") website violated copyright law, and
2) the recommended procedure to follow in the future.
This written opinion is to memorialize our previous conversations and my email to
you on October 19, 2006.
Background Provided by You of HOI Website:
HOI is the county's anti-drug website, created after receiving numerous requests
from the community at the 2002 Hawaii island Methamphetamine Summit. This
website is maintained by E-World Fair. E-World Fair is funded by contract with the
Hawaii Community Foundation. The Hawaii Community Foundation administers the
Hawaii Island Methamphetamine Initiative, which are funds provided by U.S. Senator
Daniel K. Inouye through the Department of Justice and the Community Oriented
Policing Services office.
The HOI website hosts information and applications for the HOI community
grants, has links to all enforcement, treatment and prevention programs and services,
an island-wide directory of services, and a calendar of community events around this
issue. Until late August 2006, the website posted relevant methamphetamine, ice, anti-
drug and substance abuse newspaper articles in Hawaii.
Hawai'i County is an Equal Opportunity Employer and Provider
William Kenoi
February 9, 2007
Page 2
On August 21, 2006, David Bock, the editor of the Hawai'i Tribune Herald
informed HOI that HTH newspaper articles posted on the HOI website was an
infringement of its copyright. After LeeAnn Hara of HOI explained HOI was a non-
commercial venture and full credit is given to the writer and media source of each
article, Mr. Bock said he would consider this and would recontact HOI. To date,
Mr. Bock has not contacted HOI.
All newspaper articles and links to the Hawaii Tribune Herald, West Hawai'i
Today, Honolulu Advertiser and the Honolulu Star Bulletin have been removed from the
HOI website.
Issues and Short Answers:
1. Whether the posting of copyrighted newspaper articles on the HOI website,
without consent from the copyright owner, is an infringement of copyright law?
Probably not. A copyright owner has the right to reproduce or to authorize others
to reproduce the work. However, this right is not an exclusive right and is subject
to certain limitations. One limitation is the doctrine of"fair use," whereby various
purposes for reproducing a work may be considered "fair," such as teaching,
news reporting, comment, criticism, scholarship and research. HOI's posting of
the newspaper articles may likely be considered "fair use."
2. Whether providing a link to a newspaper's website is an infringement of copyright
law?
No. HOI providing a link to another website is not a violation of the copyright law,
since no copying is involved. In addition, HOI did no distributing of copyrighted
work because the "actual dissemination,"transferring a file from one computer to
another, is done by the newspaper website. Although HOI provides the link to
the newspaper website, it is the newspaper's website that transfers the
images/articles to a user's computer and HOI is not involved in the transfer.
3. What is the procedure that should be followed in the future if HOI wants to
a) post copyrighted newspaper articles on its website, or b) offer a link to a
newspaper's website?
a. Even if"fair use" is arguable, before using copyrighted material, the safest
course is to always obtain permission from the copyright owner, preferably in
writing. Acknowledging the source of the copyrighted material does not
substitute for obtaining permission.
Mr. William Kenoi
February 9, 2007
Page 3
b. HOI can offer a link to a newspaper website. This is not a violation of
copyright law because the mere offering of a link is neither copying nor
distributing of a newspaper article.
I. Discussion:
A. Background of Copyright Law
Title 17, United States Code, Section 106, Exclusive Rights in Copyrighted
Works, is known as The Copyright Act of 1976. It provides that the owner of a copyright
has the exclusive rights to do and to authorize any of the following:
1) to reproduce the copyrighted work in copies or phonorecords;
2) to prepare derivative works based upon the copyrighted work;
3) to distribute copies or phonorecords of the copyrighted work to the public
by sale or other transfer of ownership, or by rental, lease or lending;
4) to perform the copyrighted work publicly (in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures and
other audiovisual works);
5) to display the copyrighted work publicly (in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion picture or
other audiovisual work); and
6) to perform the copyrighted work publicly by means of a digital audio
transmission (in the case of sound recordings).
However, there are exceptions to the exclusive rights of the owner. While the
copyright owner has the sole right to exercise these exclusive rights and to exclude
others from exercising any such rights, these rights have various limitations listed in the
statute. These exceptions are set forth in Sections 107 through 118 of the Copyright
Act.
"Fair use" is one of the exceptions to the copyright owner's exclusive rights,
which I believe would apply to the situation at hand. Title 17, United States Code,
Section 107, Limitations on Exclusive Rights: Fair Use, referred to as the "fair use
exception," contains a list of the various purposes for which the reproduction of a
particular work may be considered "fair," such as criticism, comment, news reporting,
Mr. William Kenoi
February 9, 2007
Page 4
teaching, scholarship, or research. Section 107 also sets out four factors to be
considered in determining whether or not a particular use is fair:
1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the
copyrighted work.
All four factors must be considered together, and not in isolation, on a case-by-case
basis. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 114 S.Ct. 1164 (1994).
H. Consideration of the Four"Fair Use" Factors in HOI's Posting of Newspaper
Articles
A. Factor#11: Purpose and character of use including whether such use is of
a commercial nature or is for nonprofit educational purposes
Factor#1 recognizes the commercial or nonprofit character of an activity. While
not conclusive with respect to fair use, this factor should be weighed along with the
other factors in fair use decisions. When the use of copyrighted material relates to
issues of public concern, the scope of the fair use doctrine is wider, and "courts are free
to consider the public benefit resulting from a particular use, notwithstanding the fact
that the alleged copyright infringer may gain commercially." Sega Enterprises Ltd. v.
Accolade, Inc. 977 F.2d 1510 (9th Cir.1992).
In this instant HOI case, the website posted relevant newspaper articles about
methamphetamine, ice, anti-drug and substance abuse news in Hawaii. Neither HOI
nor the county received any monetary gain from the postings. Because substance
abuse issues are matters of public concern, the posting of the newspaper articles were
to inform and educate the public, and there was no monetary gain involved, it is likely
this factor#1 weighs in favor of the county's "fair use" of the copyrighted newspaper
articles.
Mr. William Kenoi
February 9, 2007
Page 5
B. Factor#2: The nature of the copyrighted work
The copyrighted works at issue here are newspaper articles published in the
Hawai'i Tribune Herald. These articles were previously published in the newspaper,
are for public consumption, and are available without charge to the public on the
newspaper's website. Thus, HOI's posting of the newspaper articles mirrors the goals
of the newspaper, which is to keep the public informed and updated about current
issues. HOI's postings actually further publicized the Hawaii Tribune Herald coverage
of the drug epidemic. Thus, because the newspaper articles are for public consumption
and continue to be readily accessible at no cost to the general public, this factor#2 also
weighs in favor of the county's "fair use" of the newspaper articles.
C. Factor#3: The amount and substantiality of the portion used in relation to
the copyrighted work as a whole
"In analyzing the amount and substantiality factor, [a] court must consider not
only the quantity of the materials used, but their quality and importance, too."
SCQuARE Intern., Ltd. V. BBDO Atlanta, Inc., 455 F.Supp.2d 1347, 1363
(N.D.Ga.Atlanta.Div. 2006) HOI posted substance and anti-drug newspaper articles,
which constituted the entirety of each work. Thus, it appears factor#3 weighs against
the county's fair use of the newspaper articles.
D. Factor#4: Effect of the use upon the potential market for, or value of, the
copyrighted work.
Although the fair use statute does not indicate how much weight is given to each
of the four factors, courts have generally placed the most emphasis on this fourth factor.
Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), cert. denied, 124 S.Ct. 103, 157 L.Ed.2d
38 (U.S. 2003).
HOI's posting of the Hawaii Tribune Herald's newspaper articles likely would not
affect the value of the copyrighted work. The newspaper had already published these
articles. The monetary gain from newspaper purchasers and subscribers already
occurred on the date the newspaper was published and sold. These articles are
currently available to the general public at no cost on the newspaper's website. Thus,
along with factors #1 and #2, factor#4 weighs in favor of the county's posting of the
newspaper articles, and supports the county's "fair use" of the newspaper articles.
Mr. William Kenoi
February 9, 2007
Page 6
III. Providing Link to a Newspaper's Website is not a Copyright Infringement
HOI's website provided links to county and state newspaper websites. Providing
a link is not a direct copyright infringement because there is no copying nor public
distribution involved.
A. No Copying Involved
Traditional "hyperlinking" transports the user directly from one website to another
linked-to website, in this instance from HOI's website to the Hawaii Tribune Herald's
website. The Hawai'i Tribune Herald's website is where the relevant ice epidemic
article is stored and served/displayed directly to the user; HOI neither stores nor serves
the article to the user.
Merely to index the web so that users can more readily find the information they
seek should not constitute direct infringement [of copyright law]. Perfect 10 v. Google,
Inc, 416 F.Supp.2d 828 (2006).
B. No Public Distribution done
By providing links to newspapers, HOI did not do any "distribution." "A
distribution of a copyrighted work requires an actual dissemination of copies. See, In
re Napster, Inc. Copyright Litigation, 377 F.Supp.2d 796, 802-804 (N.D .Cal.2005). In
the internet context, an actual dissemination means the transfer of a file from one
computer to another." Perfect 10 v. Google, Inc, 416 F.Supp.2d 828, 844 (2006).
In this instant HOI case, HOI provided links to the newspaper websites, but it is
the newspaper websites that transfer the ice epidemic articles to a user's computer.
Because HOI is not involved in the transfer, HOI has not actually disseminated nor
distributed the newspaper articles, and therefore has not infringed on the newspapers'
distribution rights.
IV. Recommendation for Future Use of Copyrighted Material
A. Posting of Relevant Newspaper Articles
Acknowledgement of the source of the copyrighted materials is not a substitute
for obtaining permission. Even if"fair use" is arguable, before copyrighted material is
reproduced, permission should be obtained from the copyright owner. It is
recommended that any permission be obtained in writing, in the event the permission is
either questioned or needs to be confirmed
Mr. William Kenoi
February 9, 2007
Page 7
B. Providing a Link to Newspaper Websites
HOI's website can provide a link to the newspaper website article. A link that
transport the user directly to the linked-to page does not violate any exclusive right
under copyright, because no copying nor distributing is involved.
I hope this summary of the copyright law, the fair use exception, and website
linking is sufficient to address your concerns. For your convenience, if you wish to
request permission from the newspapers to post relevant ice epidemic articles, I have
drafted and attached a letter for you. Please feel free to contact me at 961-8304 x114 if
you have any questions or further work requests.
Sincerely,
(.t �'_'A�G�
DIANE A. NODA
Deputy Corporation Counsel
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