The past several weeks have seen lots of publicity about Pinterest.com as well as its/its users’ copyright infringement of third party works. Yesterday, co-founder Ben Silbermann posted in their blog:
Unfortunately, the new terms aren’t much different than the old terms, at least as far as copyright concerns go.
Silbermann’s main selling point for the new terms is that they have removed their option to “sell” content:
Old: 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.
New: Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users. Nothing in these Terms shall restrict Pinterest’s rights under separate licenses to User Content. Please remember that the Pinterest Service is a public platform, and that other Users may search for, see, use, and/or re-pin any User Content that you make publicly available through the Service.
However, “selling” was never the main concern of artists. What kind of “selling” were they trying to cover? Obviously, they knew they could not license the content on the Pinterest servers as stock content. Were they planning to “sell” the content in a book? “The Best Photos on Pinterest”? Of course not. You can’t go about using the copyrighted works of people without explicit permission from the creator. Even in their proclaimed naivete’, they would know that would be illegal and Silbermann says that wasn’t even their intent:
Selling content was never our intention…
So, either they just copy and pasted their terms without reading them, or hired a poor lawyer to draft them. Not that this has stopped outside sites from trying to profit off the works of others, like Print-erest.com, a site that proclaims:
Turn your Pinterest Pinboards into posters and books. Printed on high quality recycled paper and delivered anywhere in the world.
Silbermann also notes other changes:
We updated our Acceptable Use Policy and we will not allow pins that explicitly encourage self-harm or self-abuse. … We released simpler tools for anyone to report alleged copyright or trademark infringements. … Finally, we added language that will pave the way for new features such as a Pinterest API and Private Pinboards.
So, they’ve moved into censorship (their choice), added a form page linked from their copyright information page to send them a DMCA notice instead of making a creator send an email, and added language to allow them to add an API. Hey, that’s interesting. What’s an API? An API is an “Application Programming Interface”. Basically, it is a set of software commands that non-Pinterest sites can use to create applications based on their network and content. So, now they are heading down the road of enabling other business to make use of the copyrighted content that still sits on their servers. We’ll have to watch where that goes.
The Issue Remains
Unfortunately the comments in the blog post have veered away from the issue of copyright into heated discussion of whether Pinterest should censor nudity so 5 year old children aren’t scarred for life. Also, there is plenty of gushing about how wonderful the site is, and how awful all the “haters” are that complain about the “free advertising”:
Very good question????? The people should be happy that we pin their websites, It’s free advertisement for them. Wonder why they have to get silly about it!!!
This is a very common view of “pinners”. They feel that “pinning” is a societal and financial benefit and that everyone’s goal in life is to merely gather links to their work. That their infringement of copyrighted works is somehow absolved by the promise of incoming traffic. These, of course, are false assumptions. For one (not that a link or credit frees a user from legal charges) the majority of pins do not link back to the original site, so even if the owner was fine with their work being pinned in return for promotion, it is unlikely that will actually occur. Second, this “free advertising” claim seems to be based on the idea that everyone is out to sell a product and they desire as much traffic as possible. However, every image is not placed online to encourage sales of a product. People may have personal blogs, where they detail their doings to their friends, and may not appreciate their images being “pinned” where it can be used in a commercial context, like on a pinboard of a travel agency, or even embedded from Pinterest onto someone else’s blog or site, using the Pinterest embed tool on every image page. People like myself, may license their work as stock content, and a “pinner”, deciding to pin my work which then suffers the fate of the above, can devalue my work, and lower my income by their non-licensed usage. Would a “pinner” like it if I took their car for a spin as long as I got it washed and filled it up on the way back? They should be happy, right?
Also, there is the following argument:
so you’re saying if i find a recipe i like and i want to pin the photo of the end result, i should wait… email the website… hope for a reply back and then and only then, pin the photo of the food…. because i should have their permission before pinning it??? That defeats the whole purpose of pinning! If I was doing this in analogue mode, I’d be cutting pics out of a magazine… not emailing the magazine and asking permission!
Unfortunately, the situations are not analogous. By buying the magazine, you purchased a personal use license, essentially, to the content, where you may transform your physical copy as you like. Copying someone elses work to the Pinterest servers for the world to see is reproducing and publishing a work without having the rights to do so. Putting “Yeah!” in the comments section does not qualify as “fair use”.
They may have changed a bit of wording, but the terms are still basically the same when it comes to claiming rights to the work that is “pinned”:
Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy.
To put in plain English, when you upload or “pin” an image to their servers, you are agreeing that you have the permissions to do so, and that (per the terms higher in the article) that you are able to grant to Pinterest a royalty free license for the works. Which, unless you are pinning something under a “Creative Commons” license, or pinning something you created, you cannot do. You cannot grant rights to others on works that you find on the internet. It is the right of the works creator to determine when and where their work may be used, especially in a commercial manner, like Pinterest (and they’re going to make money off of the content they have no rights to, at some point).
So, when a user pins something that they do not have the rights to, and they get sued because the owner found it being used illegally on a site somewhere, and traced it back to the pinning it on Pinterest, remember:
You agree to indemnify and hold harmless Pinterest and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), arising out of or in any way related to (i) your access to or use of the Services or Pinterest Content, (ii) your User Content, or (iii) your breach of any of these Terms.
The user is on their own. People do sue. So do businesses. There is no shortage of blogs on the web complaining that they received letters from Getty Images for using a Getty represented work without permission. So, is Pinterest going to help the user when they decide to “pin” a pretty image from a blog, and find out that the blog user correctly licensed it from Getty, but the person who embeds it from the user’s page did not? Nope.
It was thought was that by making “smaller” display versions of the images being “pinned”, that Pinterest could hide behind a transformative “fair use” claim, even though the images were still very usable at around 700×700 pixels size. As a test, to see if they kept the IPTC information embedded in the file when they resized it, I pinned the same image, once from my computer, and once from my website. The image was a blue 2000×2000 pixel image. The image uploaded from my computer is available on the Pinterest site at a full 2000×2000 if you click through the pin link. That is interesting. People could use Pinterest as a host for stolen full size images by uploading them from their computer. This makes Pinterest like the Napster of images. It is fairly easy to save a full size image from a website, and then upload and republish it at full size. It’s also something to keep in mind when uploading personal images to their servers.
When you use the “embed” code generator on the page, it serves up a smaller 600×600 pixel image with the meta data cleaned out. When an image is “pinned” that does not need to be resized, the meta data seems to be retained, but their resizing function loses all the data that could actually point someone in the direction of the art creator.
Pinterest still has issues with stepping on the rights of content creators, via the unknowing actions of their users. Still, they put the policing responsibility on content creators, who may not even know their work is being stolen and used inappropriately.
I would have no issue with Pinterest (mostly, anyways), if it was an opt-in situation. Then, anyone wishing to participate could put a code on their site, or “Pin” buttons to facilitate Pinterest users, and the suppliers would be going in knowing where they stand. As it is, I believe they are still being irresponsible.
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