Part 1 (of 2): Teacup in a Tempest

So, here I was all ready to write a post about how everyone should just stop freaking out about Pinterest’s terms of use (“TOU”), when someone tweeted this excellent piece from the Copyright Librarian (updated here) that basically makes all the points I was going to make. And lots of other people have been making all kinds of other points about Pinterest, copyright and terms of use. Is that going to stop me from writing about Pinterest? Of course not!

The Pinterest kerfuffle started a couple of weeks ago with several articles about a lawyer–not a copyright lawyer, but a good, solid lawyer–who (1) is a photographer and (2) actually read Pinterest’s TOU. In tears (a perfectly natural reaction from reading any TOU), she took down her Pinterest account. This generated a good deal of interest across the Internet, including from Pinterest’s CEO–and, alas, a good deal of legal misinformation.

Nipping it in the Bud

We’ll focus on the article in Business Insider article that “broke” the story (as opposed to the original blog post). What happened was that the lawyer/photographer posted a blog entry about how she came to the conclusion that she should stop using Pinterest. She isn’t a copyright lawyer, but she knows how to read a contract, and what she found in Pinterest’s TOU horrified her. Her post wasn’t meant to be a copyright analysis, or even a full legal analysis, only that she’d read enough that her risk-adverse lawyer brain* said, “You’ve got to get out of this.”

* I think there’s actual research out there showing that lawyers are, by nature, far more risk adverse than normal. We’re insane in some other ways, too.

The Business Insider article appears to have taken the lawyer-photographer’s blog post, summarized it (as though she had interviewed the lawyer-photographer) in a way that introduced all kinds of legal errors. Let’s first correct those mistakes, so we know where we are.

The biggest mistake is a failure to acknowledge or mention that thing, you know, where you’re protected against claims of copyright infringement* if all you did was provide a system for users to upload their own content. What do you call it again? Oh, right. The DMCA safe harbor (well, one of them anyway). In the lawyer-photographer’s case, this is understandable. She wasn’t interested in Pinterest’s liability: she was worried about her own liability, and the DMCA safe harbor doesn’t help with that–at least, not directly. As we’ll see next time, it’ll make a huge practical difference.

* Er, civil only… 

There’s at least one commentator who has visited the issue. I disagree*, however, with his assessment that Pinterest’s TOU lacks a repeat-infringer policy. I think it’s sufficient for Pinterest to include in its TOU and “Copyright Policy” that it will “in appropriate circumstances and at its discretion” to terminate accounts of repeat infringers. True, some sites have more details, such as those with “three strikes” policies, but this is probably enough.

* Conceivably, Pinterest’s policies were updated since this article–in which case, Pinterest ought to send the guy a fee.

Other mistakes from the article:

• That Facebook can get in trouble for copyright violation, but Pinterest can’t. What the journalist should have written is: “Why Facebook catches all kinds of flack from photographers (but of course has never been found liable), but Pinterest hasn’t yet.” The answer that is easy: Facebook has been around a lot longer and is a lot bigger than Pinterest.
• That fair use is somehow limited to criticizing, commenting on, reporting on, teaching about the work in question, or for research purposes. No, that’s not true at all. Could you imagine if that were the case? No Betamax decision, no possibility of space/format shifting, no personal copies for personal use, no aggregation of snippets, no thumbnails on Google, and so forth. The journalist limited her fair-use analysis to Section 107, which misses about 90% of the law. Even then, she misread the statute, missing the crucial “such as” just before the list of purposes, making clear that criticism, commentary, etc., are just illustrations of some of the uses to which fair use may be put.
• That there’s some question about whether thumbnails are fair use. If that were the case, why hasn’t anyone sued Google, which stores full copies of image files and then displays reduced versions in its search results? Oh wait, someone did, the high-end nudie website Perfect10. You can read the opinion here, but here’s the relevant holding: Google’s copying of and thumbnail display of Perfect10’s images were fair uses of those images.
• Pinterest is the equivalent of Napster “as an enabler of illegal activity.” That’s a bit rich. Isn’t there a huge difference between, essentially selling copies of ripped music files, and people sharing images they like? Although I’ve cautioned against equating copyright infringement with theft, doesn’t Napster seem a lot more like theft than Pinterest?

There’s another huge difference between Napster and Pintest: Napster wasn’t eligible for DMCA protection; Pinterest is. Napster didn’t even try to come in under the two most logical safe harbors–section 512(c) covering information uploaded by users, and section 512(d) covering information services–because it didn’t come close to qualifying: it didn’t respond to takedown notices, it had actual notice of infringing activity but did nothing, and I doubt very much it had a real repeat-infringer policy.* Instead, it tried to come in under section 512(a) covering transitory digital network communications. Napster failed because, well, computer files in question could hardly be called “transitory.”

* Since the repeat-infringer policy is a requirement of all four DMCA safe harbors, that failure should have doomed its Section 512(a) argument as well.

Pinterest’s Normal, Horrifying Terms of Use

There is, however, one thing that rings completely true, though: “pinning” other people’s work without permission or license is copyright infringement, the only question being whether it’s also a fair use. This is because “pinning” actually involves making a copy of the image file onto Pinterest’s servers.* It is direct infringement by you, because you’re the one doing the “pinning,” and it’s indirect infringement by Pinterest because it’s making your infringement possible. The difference between you and Pinterest is that Pinterest can avail itself of the DMCA safe harbor, and you can’t.

* Couldn’t Pinterest have just linked to the image file? Legally, that would solve the reproduction problem for the user, though there’d still be a public display problem for Pinterest. Practically, it’d be too slow and spotty to be much good. Every time you called up Pinterest, you’d be drawing image files from dozens of different servers with different response times and capabilities, in different parts of the world, etc. The Pinterest page would look pretty ugly, and not all of the images would load correctly. Better to make your own copy and populate a bunch of content servers so the images spring up nice, neat and fast.

But you know that, right? And if you do, then nothing in Pinterest’s TOU should really surprise–or horrify–you:

• You represent and warrant that you are authorized to license or sublicense (as applicable) to Pinterest the image file that you’re “pinning” and that your (and by extension Pinterest’s) use of the image file won’t infringe on anyone else’s rights. With DMCA safe-harbor protection available to Pinterest, perhaps these representations aren’t strictly necessary. But they’re also kind of a no-brainer. Pinterest can point to them and say, “See, we discourage copyright infringement.” More important, it helps Pinterest look to you for indemnification if it ever gets into trouble.
• You agree not to use Pinterest to violate the law, including copyright law. Almost every website’s terms of use have a provision like this. The main function is to give Pinterest an excuse to kick you off the system if you do things that make Pinterest look bad.
• You agree to defend and indemnify Pinterest if it’s sued as a result of some violation of the TOU that you did, including copyright infringement. Again, pretty much every website TOU has this provision. In terms of copyright infringement, it’s half* redundant. If your direct infringement caused liability to Pinterest, Pinterest would always have the option of suing you separately to recover the judgment it had to pay. Which only seems fair, right? Still, it’s always better to put these sorts of things in writing.**

* I say “half” because Pinterest can force you to pay its defense costs (i.e., legal fees), too.

** Because now you know (if you actually read the TOU). And knowing is half the battle. GI Joe.

• You license (or sublicense) the content you “pin” to Pinterest so Pinterest can do all manner of things, including transfer to license/sublicense. I’ll admit that this one is kind of broad. I’d be really annoyed if Pinterest transferred the license/sublicense to someone I hated. Then again, it’s hard to predict what Pinterest might need to do with the content in the future. While we can probably rely on Pinterest to limit its use of the content to those necessary to effect its current business model and logical extensions thereof, what if Pinterest falls on hard times and starts looking at these licenses/sublicense as an asset?

Next time we’ll discuss how much you should be worrying about using Pinterest.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.