There’s a lot of internet buzz these days about new “social media” site Pinterest.com. What is Pinterest, you ask?
Pinterest lets you organize and share all the beautiful things you find on the web. People use pinboards to plan their weddings, decorate their homes, and organize their favorite recipes.
Best of all, you can browse pinboards created by other people. Browsing pinboards is a fun way to discover new things and get inspiration from people who share your interests.
Basically, the site provides a place where the user “pins” images and text that they have found on various websites of interest. This information can be socially shared with friends, or used as sort of a remote “bookmarking” system. Where do these image “pins” come from?
A pin is an image added to Pinterest. A pin can be added from a website using our bookmarklet or you can upload images from your computer. Each pin added using the bookmarklet links back to the site it came from.
The website provides a search functionality, essentially making it something along the lines of early Yahoo. An editor curated search engine of links, but where the “editors” are anyone with an account. The question today, however, is “Does Pinterest infringe upon copyright with its service?”
Well, Does It?
This question goes to the heart of how Pinterest works. When an image is “pinned”, Pinterest literally copies the image to their servers. Full size. Let’s look at an example. While writing this, I went to Pinterest and picked an image at random, and tried to find the original location of that image. This is the image, and it is on a blog:
If you visit the blog, you will not see any copyright notice, but absent that, you have to assume the image is protected. All works are generally protected upon creation, unless otherwise noted. My above inclusion would generally fall under the “fair use” guidelines, being both editorial in usage, as well as being an inline display from the host’s servers.
Now, using Google Image search, this image can be found on Pinterest in several different locations. Here is one where they have pinned directly from the original blog page: http://pinterest.com/pin/129830401727387032/ . You can tell this, because at the top right of the image, it says the source location of the “pin”, in this case, Mmmm is for Mommy. Some of these are “re-pins” of an original “pin”, some are different “original” pins. Each of these can then be “re-pinned” again and again to different users. In any case, you can see that the Pinterest link above has a URL for the image on the Pinterest servers: http://media-cdn.pinterest.com/upload/129830401727387032_xzgJPpGR_c.jpg
Why is this important? Because any images being “pinned” from the web are being copied to the Pinterest servers for display through their interface, at full size, as well as a version created at thumbnail size. Is it copyright infringement to copy others’ works without their permission for your use? Let’s check the definition of copyright infringement (from Wikipedia, for a easy to read version) …
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. It often refers to copying intellectual property without the creator’s written permission.
It sure sounds like copying people’s photographs without authorization would be copyright infringment. Yet, Pinterest seems to be encouraging people to scour the web, pinning (copying to their servers) artwork created by others: “Pinterest lets you organize and share all the beautiful things you find on the web.” In fact, Pinterest requires that users hold the appropriate rights to all content they “pin” (even though they know that’s not really going to occur) and try to shift blame to the user:
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.
There is some precedent for search engines and image display. In Perfect10 vs. Google, Perfect10 argued that Google was framing (displaying inline) its content that Google found on infringing websites.
After an eight-page discussion of the framing issue, the court found that the relevant question in whether Google was guilty of displaying and distributing the full-sized images due to framing others’ content was whether it hosted and physically transmitted the content itself (the “server test”), rejecting P10’s argument that the relevant question should be whether the content is visually incorporated into the site (the “incorporation test”). Since on the physical level, Google only provided an instruction for the user’s computer to fetch the infringing pages from servers not under its control, the court found that P10 was unlikely to succeed on this point, and so denied its request for injunction.
Taking those thoughts into account, since Pinterest hosts and physically transmits the infringed content itself, as well as incorporating it into their site, it would seem that the court would side with the copyright holder. However, Perfect10 vs. Amazon/Google found that creating thumbnails of copyrighted works for search purposes was fair use.
In reaching this result, the court relied largely on the transformative nature of the thumbnails Google created, which, by facilitating the public’s ability to search the web for images, serve a different purpose than the original images, which are designed to entertain.
In this case, though, Pinterest is not only facilitating an ability to search, but also to entertain. Users have said Pinterest is highly entertaining, extremely addictive, a greate time-waster, etc.
Pinterest does, however, provide a remedy to copyright holders who find their works hosted on Pinterest:
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to Pinterest’s Designated Copyright Agent. Upon receipt of the Notice as described below, Pinterest will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.
Which aligns with the US Copyright Office’s regulation that:
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider –
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
So, It’s Ok For Them To Do This?
Well, it certainly seems that since they have a remedy for copyright holders who find their works hosted, copyright holders should be pleased. However, is it the job of a copyright holder to actively police millions of Pinterest pages for their works, and is it fine for Pinterest to knowingly encourage actions that are largely going to result in an infringement? From here:
Copyright infringement is a tort. So is enabling or inciting another to infringe, at least when the enabler knows that her conduct will result in infringement. Decisions dating back several decades recognize that one who supplies the means to infringe, and knows of the use to which the means will be put (or turns a blind eye), can be held liable for contributory infringement.
Pinterest is supplying the means to infringe (tools to copy works to their servers) and knows of the use to which means will be put (surfing the internet for works to copy, which are mostly protected works). Also from the page above:
The Court set out three elements probative of intent to induce infringement: (1) the defendant promoted the infringement-enabling virtues of its device; (2) the defendant failed to filter out infringing uses; (3) defendant’s business plan depended on a high volume of infringement
Again, Pinterest does promote the ease of use of the “device” to copy works to its servers. I don’t know of any method it is taking to filter out infringing uses. And, like any internet business, their plan likely depends on a high volume of infringment. The more users creating boards of “pinned” works, the more interaction and the happier a social network it can create. At this point, no one is quite sure how Pinterest makes money, but you can bet that sooner or later they will find a way to monetize off of all these people who have put infringed upon works onto the Pinterest servers.
If you bring up the infringement issue with people, they will likely say things along the line of “Oh, it’s ok, because it’s so much fun” or “I’m good with it – it’s like free advertising” or “Not a problem because they link to the original page”, none of which is the point, IMO, and none speak for every person who is being infringed upon.
“The Materials may only be used and copied for your own, non-commercial, personal or educational purposes, provided that the Materials are not modified and that copyright and other intellectual property notices are not deleted. You may not create derivative works from or otherwise exploit the Materials in any way.”
I’m not a lawyer, but I have a feeling that eventually Pinterest is going to run into some sort of legal trouble for their business plan. What do you think?
edited to add: Here is another article I wrote after an actual incident on a Pinterest board.
edited again: Another article of mine with links to thoughts from others.
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