Part 2 (of 2): Welcome Nice Pinterest Users to the Bizarro World of Copyright and the Internet!

Last time, we took stock of the recent kerfuffle about Pinterest, copyright and Pinterest’s Terms of Use (“TOU”), and we even looked at those horrifying, normal TOU. In this post, I want to step back and answer two basic questions: Should Pinterest users really worry about being sued for copyright infringement? And is there really something to all this fuss?

I’ll preface the rest of what I’m going to say by emphasizing that, although I’m a lawyer in this field (i.e., copyright and the internet), I’m not giving you legal advice here. A lot of this is reasoned speculation, but I could turn out to be wrong, and I don’t know your specific legal situation and speak to it. OK?

Is Someone Really Going to Sue Nice Pinterest Users?

How much should you worry if you’re using Pinterest? I suspect you don’t have that much to worry about. Unlike Napster, Pinterest isn’t threatening an entire livelihood here. Flickr has already done all the damage the internet is going to do to professional photographers, in a perfectly legal manner, by (essentially) crowdsourcing cheap photographs and cutting the bottom out of professional photographers’ bread-and-butter. I know everyone has in the back of their minds the RIAA’s campaign against file-sharers. But, as misguided as that was, the RIAA was under heavy provocation: a whole industry and way of doing business was a stake. Pinterest is nothing like that kind of threat.

Besides, if we learned anything from the RIAA’s campaign, it’s that it did more harm than good. On the one hand, it educated people about the continued viability of copyright law. On the other hand, it made enemies of an entire class of consumers, and disgusted everyone else. And it had no demonstrable effect on illegal file sharing and made content producers look like mustache-twirling villains.

Could you imagine what would happen if photographers and graphic designers started suing Pinterest users? The RIAA at least could paint its targets as thieves (at least, when they weren’t targeting obviously innocent people, like technologically illiterate grandmothers). Pinterest users, by all account, look a lot like the rest of America. It’s a lot easier to demonize college students and single mothers than it is to demonize soccer moms. What happens when it gets out that “Sharon,” “Emily” or “Ted” from, say, Overland Park, Kansas, or Sugarland, Texas, has received a demand letter from a photographers’ organization?

More important, if a photographer or graphic designer really wants nice Pinterest users to stop pinning her work*, it’s a lot easier to send Pinterest a DMCA take-down notice than it is to enjoin (or even send demand letters to) dozens of those nice Pinterest users.** If that photographer or graphic designer thinks she’ll recover damages from those nice Pinterest users, she’s delusional. Nice Pinterest users are said to be more educated than average, which means they might have some money, but not that kind of money. Also, such educated people might hire lawyers, and it’s possible, just possible, that those lawyers won’t be stupid.

* Also, Pinterest has been developing a “no pin” tag that should make it impossible to “pin” the affected image file. We’ll see how well that works and how much that is adopted.

** For the same reason, you don’t have to worry too much about having to indemnify and defend Pinterest. The DMCA safe harbor ought to be enough to defend Pinterest. And Pinterest knows you don’t really have the money. And Pinterest probably has no desire to alienate its customers by demanding (and suing to receive) indemnification.

So What’s All the Fuss?

So why all the fuss? The fuss is a new class of internet users becoming acquainted with the bizarro nature of the internet. What was legal in the “real world” is illegal on the internet.* And not trivially illegal either. The statutory damages are huge, way out of proportion to the wrong or the harm. And you’re not doing it in private, where nobody can see you, or where you can destroy the evidence. The internet shows all** and remembers all.

* We can call this Rick’s Bizarro Rule of the Internet. Only I’m sure someone has come with it before me.

** Unless you’re taking extreme precautions, but in a social network, what would be the point?

In the case of Pinterest, the real world activity is scrapbooking. Scrapbooking, for goodness’ sake! A wholesome, quiet and social* hobby. Scrapbooking is also legal. If you were to cut images out of a magazine for use in a scrapbooking project, and show the completed project to your scrapbooking friends at a scrapbooking party, that’s perfectly legal.** Besides, who’s ever going to find out about it?

* Honestly, I think I know one person who scrapbooks, so I’m not much of an expert. For all I know, it’s really a despicable, violent and cruel hobby, like fantasy football or playing Monopoly.

** No, it’s not a derivative work. Stop it. 

In the bizarro world of the internet, scrapbooking is copyright infringement. Using images from the internet analogue to magazines (i.e., pretty much any website)–that’s copyright infringement.

Worse, Pinterest inadvertently ends up looking like it’s setting a trap for the unwary. There is a perceived inconsistency between the services Pinterest offers and its TOU. The TOU force you to represent that you are properly authorized to pin the image in question. But Pinterest invites you pin things you found on the internet–and you often don’t have that authority regarding those images. So if you do what Pinterest appear to want you to do, you have to infringe copyright.

Welcome to the Internet, Nice Pinterest Users!

The arch and snarky response to this fuss is: Welcome to the internet! The internet is a great way of spreading content around. Some of the available content is the copyright equivalent of “open source”: the author doesn’t mind–in fact, actively loves it–when the content is reproduced, displayed and performed. Most of it isn’t. Of that, a lot of it is owned by people who don’t care if it’s shared; some of it is owned by people who care but are reasonable about getting credited and/or paid; some of it is owned by people who overreach their bargaining position to make money; and some of it is owned by people who care but are too big, disorganized or arrogant to get licenses from; and some of it owned by hyper-vigilant parental units who won’t let ANYTHING happen to their precious beloved content (and woe unto you if you look cross-eyed at their children!).

There is, alas, something of an direct relationship between how desirability and professionalism of content and the vigilance of the copyright owner. People who make really good, professional content are usually trying to make a living at it, and to do so, they need to enforce their copyrights.* **

* The over-reaching and hyper-vigilant ones are exceptions. By nature, they over-value their content.

** I’m going dissent a little bit from my own opinion here. For what I guess is a minority of internet users (and this might be generational), myself included, what makes the internet worthwhile is the user-generated content. We would never visit a pirate site to download content, not even if we were Game of Thrones nerds who were frustrated by the inability to buy Game of Thrones legally. We love watching home movies of their cute kittens being cute, mashups of 300 and Popeye the Sailor (or whatever–as far as I know, there’s no such thing–that’d be awful), commercial pitches of weird things getting blended, dramatic prairie dogs, etc. etc. etc. It’s not that creativity has been democratized–it’s always been there. It’s that we now all have access to millions of little (and big) points of creativity, and a built-in means of creaming off the best of it. And it’s all free, and all legal (well, assuming a rational application of fair-use law).

Some things, of course, are safe to “pin.” As I’ve just said, a lot people don’t care or are happy to share, so they’re not going to sue you. More sophisticated types might distribute their work for free via a kind of open license like Creative Commons, which spells out what you can and can’t do with the work. I’ve noticed more and more “Pin It” buttons on third-party sites. Assuming the button is authorized by the copyright holder, that sure looks like an implied license to, at least, “pin” the work. And then there’s stuff that already in the public domain (which as the Copyright Librarian points out, isn’t the same thing as “I found it on the web”).

Some Small Hope

There is cause for hope. As this guy points out, making a new segment of the population aware of the bizarro world of the internet stands a reasonable chance of leading to reforms that mollify the bizarreness. For one thing, lawmakers are lot more likely to listen to the problems of soccer moms than college students with experimental facial hair. Right now, the battle has been between large content-owners and the upcoming class of new consumers. What if those nice Pinterest users, and their friends, and their spouses, take sides? Might that be enough to shift the debate?

Maybe, just maybe, we’ll have some sensible (and minor) copyright reform. Or maybe someone will hit upon an intuitive technological solution to the bedeviling problem of (1) instant permissions (so we can quickly get authorization to use content), and (2) robust attribution (so we can find out who the copyright holder actually is).

Ah, well, this’ll probably just blow over after everyone realizes there’s nothing to fear.

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.