Copyright Watch: The Liability-Proof World of Pinterest

By David Walker

The copyright infringement hazards created by Pinterest have been the subject of much media attention, but the company actually sits on the same safe, secure legal ground that other user-generated social media sites occupy. Like Twitpic and Tumblr, for instance, Pinterest puts all legal risk squarely in the lap of its users, while reaping the rewards of their free labor, the free content they upload and their growing appeal to potential advertisers.  

For those who are unfamiliar with the site, Pinterest enables users to collect and “pin” content that captures their eye (including pictures) from all over the Web. The company’s succinct description of itself is: “Pinterest is an online pinboard. Organize and share things you love.”  

The company suddenly drew a lot of unwanted media attention starting in late February after Pinterest user Kristen Kowalski, who happens to be an attorney as well as a photographer, read the Pinterest terms of service (TOS) and realized that any copyright infringement liability rested entirely on her as a Pinterest user. In a fit of worry, she cancelled her account, and publicized her findings in a blog post as a warning to other users. Her post went viral, and suddenly Pinterest had a PR nightmare on its hands.

To users who don’t know better, “Organize and share things you love” is an open invitation to “pin” content that doesn’t necessarily belong to them. Pinterest’s TOS agreement does warn users against violating copyrights, but not in a way that’s understandable to average users, who rarely bother to read eye-glazing TOS agreements in the first place.

Specifically, a clause buried deep in the original TOS says that users warrant that they either own the content they post on Pinterest, or have the right and license to post it, and that they are not infringing copyright. Buried even further is an indemnity clause that states: “You agree to defend, indemnify, and hold Cold Brew Labs [Pinterest’s owner], its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages …” It’s language for lawyers, not laypeople.  

Those terms are hardly different from boilerplate legalese in the TwitPic or Tumblr TOS agreements. That’s because user-generated content sites borrow liberally from each other’s TOS agreements. But the reason Twitpic or Tumblr haven’t drawn the fire that Pinterest has is because those sites are set up for users to post their own photographs, not photographs (and other works) that belong to other people.

Pinterest has suffered comparisons to Napster, the infamous audio file sharing service forced to shut down more than a decade ago for abetting copyright infringement of music. The bad press has forced Pinterest into damage control mode. It is now avowing its respect for intellectual property rights at every opportunity, asserting that it warns users to get permission to pin content, and reaching out to critics.  

CEO Ben Silbermann called Kowalski to talk about her concerns, for instance. Company representatives have also met with the American Society of Media Photographers (ASMP) and Picture Archive Council of America. ASMP executive director Eugene Mopsik explains the predicament of photographers: “Pinterest is like all other social media sharing sites in that it represents a double-edged sword for creators. The potential exists for it to be a very successful promotional tool and at the same time has the potential for extraordinary abuse, especially if the rights holder/creator cannot be identified and has not been compensated for the use,” he says.

He continued, “They need a resolution to this issue and rights holders need to be fairly compensated for their works which comprise the backbone of this social media outlet.”
But Pinterest’s response to ASMP added up to lip service. According to Mopsik, Pinterest asserted its “great respect for creators and their content,” and pledged to “work with ASMP and others.” Pinterest has done little in the way of making substantive changes to its business model, except to find new ways to protect itself.

Pinterest has made a blocking code available to anyone who doesn’t want his or her Web content “pinned,” but the company doesn’t have much incentive to promote a tool that hinders its users. Pinterest has also made some incremental changes to its TOS agreement, which were to take effect on April 6. For instance, the new TOS makes the Pinterest copyright policy (“Pinterest values and respects the rights of third-party creators and content owners, and expects [users] to do the same.”) and the user liability clause more prominent.

The new TOS also retracts Pinterest’s right to “sell” any content uploaded by its users. That right to re-sell content rankled some users and critics, so Pinterest has been praised for the change. But the company says it never meant to assert re-sale rights in the first place; it had simply swept up that language when it modeled its original TOS agreement after those of other Internet companies.  

Pinterest has made it easier for copyright holders to notify the company of infringing “pins,” so those pins can be removed. That certainly helps copyright owners protect their rights. But it also protects Pinterest from the risk of any contributory liability for infringement under the Digital Millennium Copyright Act (DMCA). (Provisions of the DMCA say, in effect, that service providers aren’t liable for infringements committed by their users if the provider takes down allegedly infringing content in a timely manner.)

Another way that Pinterest has quietly reduced its own risk is by forcing users (under the new TOS terms) to give up the right to file class action claims against the company, and to waive their right to sue Pinterest in a court of law for, oh, say, copyright infringement; or anything else. Users must agree to arbitration instead. Pinterest says many Internet service companies are writing arbitration clauses into their TOS agreements to discourage “frivolous” lawsuits. But the arbitration system—and decisions that results from it—favor corporations over consumers. So the arbitration clause is just one more way that Pinterest cements its legal advantage over its users.  

Clearly, the fate of Napster—which was sued into oblivion—is on Pinterest’s mind.

Related Articles:

Wedding Photographers Face the (Copyrighted) Music
In Cariou v. Prince, an Appeal to Clarify a Crucial Fair Use Boundary
TV Networks Play Fast and Loose with Photographers' Copyrights

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