More on Pinterest and copyright

Source: google.ca via Andres on Pinterest

It seems like the Pinterest copyright meme refuses to die. Some days ago I wrote a short analysis of what I believed were the main issues in this subject, particularly concentrating on the fair use and DMCA take-down aspects of the question. In my opinion, Pinterest falls well under both fair use doctrine an the limitation of liability offered by compliance with DMCA procedures. Since then however, more questions have been accumulating in several fora, so I wanted to quickly return to the topic.

Who does what?

A lot of confusion seems to arise from not thinking of who are the many different parties that may be involved in any given pin and board. As far as I can see, these are all the actual and potential parties:

  • Original content creator: the person who took the photograph, drew the image, or created the picture digitally.
  • Licensee: Third party who is licensed to use and display the picture.
  • Pinterest user.
  • Pinterest.

There are various possible interactions between these players. A creator may post directly to Pinterest; a licensee may post directly (e.g. a CC-licensed image); but the most common way in which content is displayed is when a user uploads a picture they have found online, usually by giving the URL. If this is the case, then the one infringing copyright is the user, and any action over direct copyright infringement would have to be taken by the owner against the user who posted the picture. At the most, Pinterest could be sued for secondary infringement.

Jurisdiction

This is another aspect I keep reading about. Some people have decided to ignore the US law analysis altogether and declare Pinterest to be infringing in x jurisdiction. For example, UK copyright law does not have the transformative fair use defense for thumbnails that exist in Perfect 10 v Amazon, and so declare Pinterest to be liable in the UK. Is this a correct analysis?

Imagine a UK photographer takes a picture and posts it on their site as “All Rights Reserved”. A Pinterest user in the UK sees it and pins it in their board. In theory, the owner could sue the user for direct copyright infringement in one of the UK jurisdictions, although it they would probably not get much money out of it. Now imagine the owner is still in the UK, but the person posting the image is in Canada. The owner could sue in their own country, but enforcing the ruling would be difficult. They would have more success if they sued in Canada, but this rarely happens because it is too expensive, and the nature of the infringement would not translate into a large reward.

Now let’s imagine that the owner in the UK also wants to sue Pinterest for secondary infringement. They can certainly do it, but as Pinterest does not have offices in the UK, we are back to the enforcement issues. The owner could sue in the US, but then US law would apply, and it is still my contention that they are just on the right side of fair use.

Terms of Use

One of the biggest complains I have read recently is with regards Pinterest’s copyright policy.  Keep the above parties involved in mind, and the possible permutations. If you are the owner (or legitimate licensee), and upload the required content, then this part of the ToS applies:

“We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.”

This is common in most social media, the owner would simply be granting a license over their own content to Pinterest. If however, you are not the owner, then this paragraph applies:

“You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.”

You are assuming sole responsibility for the uploaded content, which also seems logical to me, so if a court would rule that any pin is infringing copyright, then Pinterest would be exempt from liability. This seems a sticking point with some people, but I cannot see how it could be otherwise. In fact, most other social media websites contain similar clauses in their terms of service. This is facebook’s:

“We respect other people’s rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.”

And Twitter’s:

“All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.”

And Tumblr’s:

“Subscriber warrants, represents and agrees Subscriber has the right to grant Tumblr and the Site the rights set forth above. Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another,[…]

So, what is it about Pinterest that is different to those other sites, and has prompted such an outpouring of copyright scaremongering? I know that “everybody else does it” is not  a defence in law, but it is a good indication that at least when it comes to secondary infringement liability, these sites are operating on the right side of the law.

On a final note, why is Pinterest filled with food pictures?