Last week, we took a look at how patent searchers can use the popular social media platform Pinterest to create a new online community of patent enthusiasts. Pinterest is currently a controversial topic within the IP community, since the site may promote copyright violation through the unauthorized sharing of copyrighted work. The Terms of Service (ToS) for the site have also come under scrutiny after a blog post by a lawyer analyzing the Pinterest ToS went viral. I found a number of articles and blog posts from the past month that tell of an ongoing saga over the copyright-related criticism that Pinterest is currently facing. As some of the articles ask, could Pinterest become the next Napster?
Read on as I reconstruct a timeline of events surrounding the Pinterest intellectual property controversies.
February 24, 2012 – “Why I Tearfully Deleted my Pinterest Inspiration Boards” by Kirsten Kowalski at the DDK Portraits blog – This is the blog post that sparked the scrutiny over the Pinterest Terms of Service. The author of this post is a lawyer who was also a Pinterest user, and she decided to analyze the Pinterest ToS to determine the liability of Pinterest users in regards to copyright violation. I’d recommend reading Kirsten’s entire post, especially if you have any interest in copyright law. She mentions some important case law (like Kelly v. Arriba Soft Corporation) that may help to determine the legality of re-pinning copyrighted photographs on Pinterest. She also discovers within the ToS that if a user is sued for copyright violation over the content of their Pinterest board:
…you will have to hire a lawyer for yourself and YOU will have to hire a lawyer for Pinterest and fund the costs of defending both of you in court. Not only that, but if a court finds that you have, in fact, violated copyright laws, you will pay all damages assessed against you and all damages assessed against Pinterest.
Kirsten comes to the following conclusion over how to avoid copyright violations on Pinterest:
If you are still with me, and I’m sure you are regretting it if you are, in my humble opinion, the only “safe” conclusion here, for me, is to either get off of Pinterest or pin only your own work or work you have a license to use.
February 27, 2012 – “Flickr Blocking Pinterest From Sharing Some Images Due to Copyright” by Tim Barribeau at PopPhoto.com – Pinterest tries to ease the copyright controversy:
by releasing a small piece of code that websites could embed to block being able to “pin” images, which, according to VentureBeat, Flickr has now adopted. Now, all non-public and non-safe pages, and all images where the member has disabled sharing, will block Pinterest.
March 13, 2012 – “Could Pinterest become the next Napster?” by Therese Poletti at Market Watch - A commentary piece reviews the copyright problems surrounding Pinterest and compares the site to the music-sharing website Napster:
Pinterest has the potential to run into some of the same controversy that plagued the digital-music-sharing website Napster, raising the question of whether pinning the works of others is damaging the market for that work.
March 15, 2012 - “Pinterest addresses copyright concerns” by Hayley Tsukayama at The Washington Post – Pinterest posts a statement in response to the copyright controversy:
…it believes that it is protected under the safe harbor of the Digital Millennium Copyright Act, and that it is committed to quickly responding to alleged copyright issues.
March 20, 2012 – “Pinterest’s Photo Copyright Infringement Issues Get More Complex” by Kathleen Davis at PopPhoto.com – This article provides an excellent summary of all Pinterest copyright and Terms of Service criticism to date and mentions that Kirsten Kowalski was contacted by the Pinterest co-founder:
After her post received widespread attention, she was contacted by Pinterest co-founder Ben Silbermann called her to discuss the copyright issues, telling her that the site is working to find an effective solution to avoid copyright infringement.
March 20, 2012 – “Amazon.com takes an interest in Pinterest” by Lauren Rae Orsini at the Daily Dot – Since Pinterest utilizes Amazon Web Services for Web hosting, a photographer’s lobbying organization known as the Artists’ Bill of Rights asked Amazon to ”take notices of copyright violations under the Digital Millennium Copyright Act regarding Pinterest,” which Amazon agreed to do.
March 22, 2012 – “For Pinterest, Revenue Will Turn Copyright Questions Into Real Problems” by Colleen Taylor at TechCrunch – A TechCrunch articles discusses additional copyright issues that Pinterest will face as it attempts to turn a profit:
The second that Pinterest starts making money of its own, intellectual property owners such as Getty Images will have the right to ask that Pinterest pay up — or start deleting pinboards.
- “Our original Terms stated that by posting content to Pinterest you grant Pinterest the right for us to sell your content. Selling content was never our intention and we removed this from our updated Terms.”
- “We released simpler tools for anyone to report alleged copyright or trademark infringements.”
What are your views on the Pinterest copyright controversy? Is Pinterest doing enough to protect the rights of intellectual property owners? Share your views on Pinterest in the comments!
UPDATE – Here is some additional commentary on the Pinterest intellectual property controversy from Kimberley Trainor, the trademark search manager at Landon IP. This commentary is opinion only and should not be interpreted as legal advice:
Pinterest is a social networking site designed to promote (via “pins”) miscellaneous content by posting the images/links onto virtual “pinboards.” Pinterest’s Rules of Etiquette do not encourage self-promotion, so users are not meant to “pin” their own content.
I think that this particular etiquette rule, in combination with the Terms of Service, is where the main issue lies. Basically, the Terms of Service state that each user represents that what they are “pinning” is something that they own or have the rights to, which means that if you use the site as the creators intend (by pinning other people’s work) it’s more than likely that you are infringing someone’s copyright. The Terms of Service make it clear that the user is liable for any IP-related infringements and moreover, the user indemnifies Pinterest.
Pinterest has admitted that its Terms of Service require some further attention and at this point have indicated that the risk of infringement to its users is reduced by Fair Use principles and the copyright law safe harbors. Moreover, Pinterest says that they respond to allegations of infringement swiftly by removing the allegedly infringing “pins” (which incidentally is how sites like YouTube deal with copyright issues). I think that Pinterest could encounter issues in relation to the indemnity clause it intends to hide behind, seeing as it creates the indemnity whilst contemporaneously encouraging its users to engage in infringing activity by discouraging the pinning of your own work (which you will clearly own the copyright to) and providing tools such as the “pin-it” bar (which makes pinning content belonging to other people super easy).
However, I don’t think that it will head the way of Napster (despite similar legal issues and the theoretical risk) because of the toes that Pinterest is potentially stepping on. In the case of Napster, the entities involved in the litigation were a small group of very powerful recording label companies with very deep pockets. These companies were well resourced and organized, making their road to court easier. Compare that to the Pinterest situation, which involves a large unorganized group of artists and creators/content owners who have very disparate interests. This group is also likely to be conflicted by Pinterest as whilst it erodes their copyright, it also provides a very valuable avenue for exposure. I also think that plenty of work that gets “pinned” is unlikely to concern many companies, as it in turn leads to business/sales.
A further question is whether “pinning” the work of others leads to damaging the market for that work for the author. It may be the case that a pin the size of a thumb nail is alright, but something high resolution is not.
Whilst it may happen, I think it’s unlikely that a housewife who pins a recipe or image of her favourite whatever is likely to be sued, but time will tell. It will depend on how the site is developed, including whether Pinterest monetizes the site for its own financial gain.
I’ve read that there are some changes expected on April 6 relating to the Terms of Service, including a removal of Pinterest’s ability to sell the content and the addition of the ability to pin privately, which I think means you can pin your own work. Websites such as Picasa have already embedded a “disable pinning” element to their site, so its users’ photos cannot be pinned – essentially blocking the site. So as the Terms of Service currently stand, they are likely to scare away users and business.
Without content to “pin” what’s the point of Pinterest!
This post was contributed by Joelle Mornini. The Intellogist blog is provided for free by Intellogist’s parent company Landon IP, a major provider of patent searches, trademark searches, technical translations, and information retrieval services.