Pinterest’s Legal Woes
If you spend a lot of time on the Internet, you’ve probably heard of Pinterest. You might not have any idea what it is, but you’ve seen it mentioned, possibly alongside Tumblr or Spotify, as the hot new thing in social media. For the uninitiated, Pinterest is essentially an online bulletin board system that lets users post pictures that they like. A simple idea, with one drawback: it depends heavily on people “pinning” pictures that they find on the web, i.e., pictures that do not belong to them. There are any number of legal problems this poses. First, what is Pinterest’s liability to the original content owner? Next, what is the user’s liability to the original content owner? And finally, what is the legal relationship between Pinterest and its users?
Pinterest is theoretically protected under the safe harbor provision of the DMCA, which protects websites from liability for content uploaded by their users as long as they promptly remove the content when requested by the original content owner. However, this protection is not absolute. As the Supreme Court held in MGM v. Grokster, and as has been more recently demonstrated in the MegaUpload prosecution, if a site actively encourages infringement its safe harbor protection will be taken away. With MegaUpload, the alleged problem was a failure to comply with takedown requests; with Grokster, it was encouraging users to download copyrighted music. Pinterest claims to comply with DMCA takedown notices (although at least one lawyer has criticized its policies), but whether it has a purpose without using copyrighted content remains to be seen. Like Grokster, it advertises the ability to use copyrighted material to its users. On the page for its iPhone app, for example, many of the sample images are protected, such as the poster for the movie I’m Still Here and photographs from the magazine Le Journal de la Maison.
In addition to removing infringing content, Pinterest has established a “nopin” meta tag that sites can use to prevent it from reposting their content. Some sites have taken advantage of this option, but how well it will work as a copyright solution has yet to be determined. For one thing, it places the burden of preventing infringement on the content providers, not on Pinterest. For another, it only prevents pinning items directly from the blocking site; users can still download the images and upload them directly to Pinterest. And of course, as major photo sites start to use the code, Pinterest may find its users getting frustrated over their inability to use the images they want.
The Pinterest users themselves, of course, are not eligible for safe harbor protections. So to be protected when posting copyrighted content, they would have to show some other basis for the right. Fair Use is one possibility, but there is nothing transformative about pictures posted to Pinterest, and it publishes works in their entirety. Currently, the best protection for individual users is probably their small scale and demographics. Unlike music sharing superusers, who might distribute thousands of songs, no Pinterest users have yet gained a reputation for the large-scale distribution of stock photos or other commercially-available images. Additionally, damages would be difficult to prove since, unlike with music, there would probably not be a presumption that each infringement of a photograph was a potential lost sale and the value of web traffic is more difficult to compute. Moreover, Pinterest is popular with women and parents, who would make sympathetic defendants in any case that went to trial.
Overall, Pinterest has got a good business model in that they have created a service that people are interested in, and they appear to be making money from it. However, until they work out their intellectual property issues, their place in the social media world will not be secure.