Pinterest and copyright

Source: 9gag.com via Andres on Pinterest

Pinterest, in case you have not heard, is the latest social network. It is sort of like Tumbler without the social angst and hipster look. Some have described it as “Facebook for women” (because everyone knows that no woman uses FB). Time magazine tells us that “Men Are from Google+, Women Are from Pinterest“. I even saw it described on Twitter as “World of Warcraft for women”, or even “Reddit for girls”. You get the drift then, Pinterest is strictly for the female audience. Please ignore the fact that having created a Pinterest account puts me in a dubious minority.

The whole point of Pinterest is that people create boards and pin pictures on them. The site allows you to upload your own pictures, but it also offers the possibility of people linking directly to the images they want to share, so a big part of the service is for people to pin stuff they find on the Internet. This has created a powerful meme in the blogosphere and in the twitterverse that Pinterest has copyright problems. You can read about the copyright problems in this Guardian piece, in this article in ReadWrite Web, this Business Insider one about “copyright theft” (ugh), and in similar items all over the place. This has surprised me, as I honestly do not see anything in Pinterest that is completely new when it comes to sharing works online. From Tumblr to Facebook, passing through blogs and Google Image, the Internet is filled with shared images. Where does the law stand in this respect?

First, let’s analyse what Pinterest really does from a technical standpoint. When you upload a picture from your computer, Pinterest stores a copy of it in their cloud servers; this is pretty much standard practice across the industry. As far as I can tell, when you link to a picture Pinterest uploads a thumbnail to their servers, and links to the original. It is therefore mostly a hot-linking service. Take the picture above, which I pinned from the meme site 9gag.com. The actual image is a low-res version taken from their local copy in their servers, which then links to high-res original. Is such copying legal?

Pinterest is a US-based company, and as far as I could tell with a simple traceroute, all of their content seems to be hosted in the United States. They use Akamai‘s content delivery network, but that should have no bearing for jurisdictional purposes. As a US intermediary company, they must comply with DMCA’s take-down notice provisions, which means that they should have some form of procedure in place for taking down copyright infringing content. Pinterest has a Copyright statement and take-down policy, as well as a “Report” button for each image. They have also allowed third parties to block pins if desired through restrictions in their API. Interestingly, Flickr has taken advantage of this capability and has included the possibility for its users to include a “No Pin” option to their pictures (despite what a Venture Beat article stated, this action has nothing to do with copyright).

While the above would appear to clear Pinterest from DMCA concerns, one lawyer specialising in DMCA issues has made some detailed recommendations on how Pinterest could improve their DMCA compliance. She says:

“A few simple changes will make this DMCA lawyer much more comfortable knowing her pins will not suddenly disappear one day when Pinterest is out of business due to paying other lawyers exorbitant amounts of money to defend it against claims of copyright infringement.”

Notice that nowhere in her article she states that Pinterest is involved in copyright infringement, or that their current policy is illegal. She just added her opinion that the current policy could be improved.

Finally, what Pinterest does, namely create thumbnails and hot-link to the original, is perfectly acceptable according to US case-law. This was well established in Perfect 10 v Amazon, where an adult-content website sued Amazon and Google for posting thumbnails and inline pictures of their content. The U.S. Court of Appeals for the Ninth Circuit ruled that linking is not an infringement, but most importantly, it held that thumbnails are highly transformative, and therefore would fall under fair use. The court said:

“Google’s use of thumbnails is highly transformative. […] Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one,” […] a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information.”

It seems like as long as Pinterest’s images are considered thumbnails in accordance to the above, they will be on the right side of the law. ETA: Perfect 10 defines a thumbnail as “reduced, lower resolution versions of full-sized images stored on third-party computers.” Can we then let this meme rest please?

A word of advice to news sources and blogs covering the issue; reports of a single lawyer over-reacting when reading Pinterest’s terms and conditions is not news.

13 thoughts on “Pinterest and copyright

  1. This article is misleading. The images are not merely thumbnails, they are stored at a much larger size than thumbnails on the Pinterest servers which you can view simply by clicking on the pinned images.

    Firstly the Pinterest pinning tool actually deletes the copyright metadata embedded in the images. This procedure was tested and reported on in detail by Artists' Bill of Rights. Why would they remove the copyright notice embedded by the author if they respect copyright as they claim on their website?

    Secondly, reproducing images on the Pinterest website requires the permission of the copyright holder, even Pinterest make that clear on their website, however, peoples work is being reproduced on this site without their permission. This infringes the author's rights and is illegal. Thirdly the Pinterest terms and conditions make it clear that Pinterest can sell the images pinned to their site.

    To see the full report on the above we recommend your readers read this article –

    http://artists-bill-of-rights.org/news/campaign-n

    • Perfect 10 defines a thumbnail as "reduced, lower resolution versions of full-sized images stored on third-party computers." (p.15451). Size is never mentioned, so I would maintain that Pinterest's copies fulfil that definition.

      I'd like to see if there is an industry standard on image metadata use in social media. As far as I can tell, most social media strips metadata from images, but I'm willing to concede that this is troubling if they are unique in that practice.

      Removal of metadata could fall foul of Rights Management Information rules, but that is another subject.

      Thanks for providing a link.

  2. Andres – interesting article (and great choice of photo – I was in Manarola last summer).

    Do you think that the differing functions of Google (a search engine) and Pinterest (a place for users sharing content) makes a difference in terms of the Perfect 10 case? Would a court consider Pinterest "transformational", when Facebook and Twitter can achieve the same effect without thumbnails?

    There's some interesting comments on my blogpost from the founder of Blipfoto (the first organisation to "pin-out") on the whole linking thing and ensuring that the thumbnail remains only for so long as the original is image is still posted – do you know what happens on Pinterest when the original image is deleted?

    http://techblog.brodies.com/2012/02/23/pinterest-

    • Hi Martin,

      Very good questions. While Perfect 10 is drafted specifically with search engines in mind, it would seem that the definitions apply in general. So, if a service offers a thumbnail (as defined), and this is transformative enough, then the service would not be liable for secondary infringement.

      About the links and the copies remaining on the server, I truly don't know. My guess is that the copy will remain, and the link would be broken.

  3. The problem is the terms of use. You take full responsibility for anything that Pinterest does with the stuff you send them and you “represent and warrant” that nothing they do will violate a third party’s rights. But you don’t actually know what they do, you are just guessing. And you are drawing legal conclusions based on that guess-work.

    • There are two different manners in which the ToS operates for an average user. If I'm the owner and I upload content to Pinterest, this paragraph 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. If the users uploads content from a third party, then the following 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."

      This also seems logical to me, and I've seen it as well in other sites. It means that the uploader is responsible for the content.

      My point continues to be that this is pretty much standard in most social media. Pinterest are simply covering their behind.

      • Here’s the problem. If the Member Content is a photo, these terms make perfect sense. If the Member Content is a URL that points to a publicly available photo, these terms do not make sense. Instead, they make me responsible for anything Pinterest does with that URL.

        So, everything hangs on a definition.

        "Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.

        That sounds like a URL that I submit is Member Content and subject to all the relevant terms.

        If that is not what they mean, they can fix it. Legal agreements should be unambiguous.

  4. With that in mind, you need to consider creating as many
    good backlinks as possible. ‘The law states that the device must ‘be operating’ to warrant a
    citation. These created pages basically have the same content but contain a different set of keywords.

  5. Since one year I have problem with people posted photos on Pinterest from my website without my permission.
    I have contacted the offending pinterest users, some of them has removed the pins, but the two main offenders are not responding.
    I have send 11 emails to pinterest, and filled in the DMCA take down 6 times. Not a single reply from Pinterest.

    I can only assume they calculate with that “the common man will not sue us” and simply ignores any requests like that.

    • The statement that Pinterest moves quickly to remove copyrighted material is a flat out lie. I have also sent numerous copyright infringement notices that involve hundreds of my images. They do not even respond! I also, tried contacting the users, but after a few comments I left on my images, Pinterest prevented me from leaving any more saying they were controlling spam.
      Those notices take many hours to do and it has all proved to be a giant waste of time. Pinterest protects the thieves that steal images and aparently are just fine with letting them post copyrighted material!
      The link they give for finding images from our site is a joke. I found at least 50 other places that had images credited to my site, that weren’t on their list. There are many more that DO NOT credit my site at all.
      My sympathies John,.

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