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.
Compounding their reposting problem, Pinterest’s Terms of Use are not friendly to users who wished to actually pin their own original content. In general, social media sites require users to grant them a license to use any content posted to that site, but do not make any claim of ownership, and Pinterest is no different. However, the key provision that is making some people nervous about Pinterest is that its license is irrevocable and perpetual, meaning that even if you delete content, Pinterest can theoretically still use the content however they wish. In contrast, Facebook’s terms state that the “IP License ends when you delete your IP content or your account.” Tumblr, YouTube, and Flickr have similar terms. So a user wishing to maintain control of their content might choose another service to post it – and those services are increasingly using the nopin meta tag.
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.
[...] Please note that there are great concerns being shared in the news about Pinterest as it relates to intellectual property rights. Proceed with caution when using Pinterest and keep an eye on how the story [...]
Pinterest has no legal woes
As the article indicates individual users may be covered by fair use, but if you want to learn how best to protect yourself as an individual and some remedies for still using Pinterest you should check out this perspective from a criminal a lawyer: http://www.hebetsmccallin.com/blog/is-pinterest-l…
[...] Pinterest site could carry legal risks It’s Not Just Pinterest RE: Copyright & Legal Issues Pinterest’s Legal Woes How Brands Can Use Pinterest Without Breaking the [...]
Hi there,
I'm a 3L at Boston University, also interested in IP and tech law. I have read many posts on the legal issues raised by Pinterest, some even by lawyers, almost all of which are just wrong in so many ways. But your analysis is great–the best I've seen so far.
I think while Pinterest may resemble Grokster in some ways, as you note by using copyrighted images in their sample page, the model does seem fundamentally more amenable to non-infringing uses. Or, infringing uses that count as fair-use. (As in Sony). So my prediction is that Pinterest would not be slapped with Grokster-type inducement liability, unless there was some really damning evidence like incriminating emails from Pinterest's founders.
And I think your points on the users are good too. I agree that the lack of commercial benefit and market substitution harm weigh in favor of finding fair use. (Most people don't discuss this and only look at the transformative quality issue). Again, my guess is that the users would be insulated by fair use.
One point you don't make is that the likelihood of users ever being sued is so infinitesimally small, given the cost it would be to the copyright holder to instigate the litigation and the burden of locating and identifying online infringers. Moreover, as you noted, the economic loss to copyright holders is probably very low. So the potential economic harm of the infringement does not outweigh the cost of litigation. And unlike the context of pirating music/movies, you don't have an organized group like the RIAA or MPAA that can exploit vast resources to make an example of infringers. The copyright holders here are discrete individuals. Any copyright holder's first (and probably last) recourse would just be the DMCA notice and take-down procedure.
Again, thank you very much for your well-reasoned article. It's such a relief to see the actual legal issues discussed rather than misinformation being spread.
-Alex, BU LAW 2012
As someone with a foot in the law pool and a foot in the blogging pool, I do want to say that there is at least a vocal minority of bloggers who are exceedingly angry that their copyrighted materials are being recycled by batch posters on Pinterest. One particularly pernicious use seems to be users who are repinning others' images (for instance, of a turkey sandwich) and then including the copyrighted (I presume) recipe in its entirety in the comment. One wonders if they have an individual cause of action under torts against either the website or the user. As the poster above mentioned, the cost of litigation and the nominal damages would probably dissuade most lawsuits, but as we well know, we should never underestimate the pissed-off solo litigants who want their days in court, damn the cost.
PS I think you mean DMCA…
Justin, UC Berkeley Law '14, coincidentally enough
I don't believe that recipes qualify for copyright protection. From the U.S. Copyright Office website: "Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook." The image, if an original image created by the poster, would likely qualify for copyright protection. Again, from the Copyright Office: "The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright."
The US Immigration and Customs Enforcement Agency has just succeeded in extraditing Richard O'Dwyer, the former owner of TVShack from the UK to stand trial in the US for alleged copyright infringement. TVShack hosted links to websites that held pirated and copyrighted music, films etc. Richard O'wyer's defense is that he was only doing what Google does and the films, music and images were not on his servers.__How does Pinterest get away with not only hosting the links to copyrighted images uploaded without the owners permission but also saving the full resolution images on their servers? Perhaps Richard O'Dwyer is an easy target and the US authorities are acting under pressure from huge US corporations whereas Pinterest is a US company with the commertial backing of wealthy US investors.
There are people out there who are losing huge amounts of traffic because once their "stolen" photos are repinned, the link back does not work. and because Pinterest show large photos, there is really no need to go to the original website to have a look, which they would were it a thumbnail.Meanwhile Pinterest do have links to their themselves so are making money from these pinned photos. Which whatever their TOC, they know the majority are copyrighted and posted with no permission.There is already one company advertising to create posters of people's pinboards…….the majority full of copyrighted pictures they have no right to use.
Anyone who thinks this is not having an adverse affect on what is for many their income and livelihood , don't know the full implications of Pinterest and just how many make their living full time on the internet. The economic loss for some is substantial.
I object to having to opt out of my copyrighted photos being pinned without my permission by adding HTML to my websites. I should have the ability to opt in. My photos, my choice.Why do we have copyright laws if Pinterest can get away with this. I agree with George.
[...] 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. American University Intellectual Property Brief » Pinterest’s Legal Woes [...]
[...] Carrie, Sager. “Pinterest’s Legal Woes” Accessed March 25, 2012. http://www.ipbrief.net/2012/03/01/pinterest%E2%80%99s-legal-woes/ [...]
[...] Sager highlights the whole concept of Pintrest relies on people pinning other people’s images that do not belong to them, without permission. As Prakash summarises the frustration with the confusing and inconsistent terms nicely “how can I post anything if I shouldn’t self-promote but those are the only images I actually own? How can I pin to my boards if I don’t have the rights to use the images I find on the interwebs? *Waves hand around* is this even a sustainable business model?” [...]
[...] items to a board and share them with others. However it has not been without controversy. e.g. see Washington College of law IP brief on legal issues. and Washington Post discussion. http://pinterest.com/ Find out more from the website. However this [...]
[...] – How do you protect your content, how do others protect their content from your (innocent) indiscreti… There have been no major legal cases as of writing that I am aware of concerning Pinterest, but it [...]
I don’t leave many comments, but after reading through a bunch of remarks here American University Intellectual Property Brief
I was curious if you ever thought of changing the page layout of your website?
Its very well written; I love what youve got to say.
But maybe you could a little more in the way of content so people could connect with it better.
Youve got an awful lot of text for only having 1 or 2 pictures.
Maybe you could space it out better?
Pinterest is really sketching its own name into the internet's social network community. However oner drawback that i can see is that most internet marketers are making their way to abuse the power of Pinterest in their campaigns. I just hope pinterest management can scrap away garbage contents being posted by scammy and spammy internet marketers.
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