March 2012 Archives

This is NOT a small technicality!

One major argument publishers have taken with respect to open access mandates is that they harm the publishers' intellectual property rights. While "harm" is relative, it is true that an open access mandate forces publishers to handle intellectual property rights differently. Just, not in the ways publishers say it does.

There's a hearing about the Federal Research Public Access Act today, and although the background documents are pretty well put-together, and relatively balanced, it's particularly frustrating to read their discussion of publishers' IP rights (pages 9-10).

The document accurately states that "should a federal agency prospectively require recipients of federal funds to ensure that the publication of their work was made in an open access manner as a condition for receipt of federal funding for the research, a {constitutional challenge over government takings of property} would likely not be successful." This is absolutely accurate.

It also states that "this effectively forces journals to yield their intellectual property rights in the peer reviewed article to the NIH requirement or not accept an article funded by NIH for publication." This is not true - and the reason it's not true is WHY THERE IS NO CONSTITUTIONAL PROBLEM WITH SUCH A REQUIREMENT.

The Fifth Amendment to the Constitution does forbid government takings of property without just compensation. But from the time of its creation, the copyright in a journal article belongs to its authors. The NIH-style open access requirement is something authors choose to agree to, or not, long before they ever create the article. Any cession of rights is agreed to by the author, before the rights exist. Considering how important federal grant funds are to many researchers, this is not a completely free choice - but I have heard very few authors actively arguing against such requirements. Most of them recognize the benefits open access provides to them and the research enterprise, and the moral claim that taxpayers ought to be able to access research they funded.

Even if you accept publishers' arguments that they add value through the editing process such that the peer-reviewed, edited version is somehow morally a work of the publishers' authorship (and boy howdy do a LOT of authors not agree with that), their rights are, at best, still derivative of the authors' copyrights. Government open access mandates don't take any rights away from the publishers; authors agree to conditions on their grant funding long before the publishers come into the rights-ownership picture.

The only choice forced on publishers is whether to publish the works of an author who cannot sign over all the rights (because they have already ceded some rights elsewhere), or not. They are not forced to cede their rights, because at the point of cession, the rights are not theirs.
| No Comments

A few clarifications on Pinterest/Copyright/TOS worries

Glad a lot of people are finding my previous post about Pinterest useful and informative. A number of comments, tweets, and emails have pointed out a couple of areas that I glossed over too fast in that post, so here's a couple of additions and clarifications.

1. A couple of people have interpreted the previous post as a wholesale endorsement of (or even "advertisement for") Pinterest.

I actually haven't been using Pinterest, don't have an account on it, don't see myself using it much in the future. Not really my thing. I'm also not affiliated with Pinterest in any formal way, and I don't think I know anyone who works there.

However, I have enjoyed looking at the boards friends have put together or shared links to - if you put the legal and/or ethical issues aside (which I don't think are unique to Pinterest anyway) I think it's a great new tool for curating online content. And I think there are lots of great legal and ethical ways to use it. Which is why I care whether overblown fears stop people from using it.

2. Nope, I am not saying "Pinterest is fair use."

If you don't have much experience with copyright issues, it's really difficult to understand fair use, especially with images as your main examples. Fundamentally, fair use says it is 100% legal to make copies of other people's stuff without permission or payment - SOMETIMES. Quite certainly, some of the copies people have made on Pinterest (remember, "pinning" makes copies, which immediately raises copyright issues that just linking does not) are legal under fair use. Some of them probably are not.

If you want to know if the copies you made are legal fair uses, you should learn as much as you can about fair use*, and use your best judgment. The fearmongers and spreaders of copyFUD would have you believe that you cannot possibly understand fair use well enough to make reasonable judgments about your own uses. I think better of you than that.

If the idea that people can make legal copies without paying sounds like an artistic injustice to you, you might consider thinking about all the ways fair use enables artistic production. Collage, remix, parodies, satire, appropriation art, and even photographs that reference or incidentally copy other images - all rely on fair use.

3. Yes, some copies on Pinterest are undoubtedly legal.

You can make copies of public domain stuff (note: "public domain" does NOT mean "anything that's public online". It means "a specific class of materials in which copyright has ended, or never existed in the first place."  U.S. federal government documents are public domain; works on which copyright has expired are public domain. 

You can make copies of Creative Commons licensed works, if the license allows it and you provide credit appropriately. You may need to learn more about what kinds of copying the various licenses allow, and how to appropriately credit, to make good calls on that.

Check out my "Joys of the Public Domain/Creative Commons" posts for examples of public domain and Creative Commons image copies: Spring Flowers; Sweaters; Rail Snowplows.

You are probably also okay making copies when the owners of the images invite you to do so - however, that can be a little murky. For example, some Etsy users were not happy when Etsy enabled a pinning function throughout the site.

4. Okay, so the Terms of Service are much like other sites; why should that make anyone feel any better?

I agree that the Terms of Service read a bit intimidatingly. But you agree to terms and conditions documents like that quite literally all the time - not just online. Most retail receipts include similar terms, as do most travel and event tickets. And yet, it is incredibly rare for companies to, for example, try to require a user to indemnify them (cover litigation costs) for a lawsuit - much less to sue their own users for breaches of the terms. (It's hard to explain why such one-sided legal agreements are so prevalent in our lives without getting pretty deep into contract theory and a discussion of how many parts of the legal system don't actually work for actual people in the real world - which is a bit beyond my ken, certainly in one blog post.)

It's also not usually attractive for people who might have the right to go after individuals in a lawsuit to do so - the "deep pockets" (i.e., entities that can actually pay damages) are elsewhere. However, copyright is actually an outlier here, and individual users do get sued fairly often - so if you believe your use of Pinterest to have been heavily infringing, some concern, and/or removal of material, may be warranted.

Finally, however powerful contracts may be, they can't functionally give Party B (say, Pinterest) rights that Party A (say, an individual user) doesn't have. So even if you uploaded stuff that you didn't have a right to upload, you have not magically given Pinterest the right to sell that image. You maybe did violate the terms of service, but the point of looking at the TOSs of other social sharing sites (or reading the backs of receipts, or even standard warranties) is to show you that you do that all the time. Not violating contracts is a good idea. But if you don't know you agreed to them, or don't understand them, there's not much you can do except try to be more aware and informed in the future.

* To learn more about fair use:
University of Minnesota Copyright Site - https://www.lib.umn.edu/copyright/useoverview
Stanford Fair Use Project  - https://fairuse.stanford.edu/
Center for Social Media's Fair Use info - https://www.centerforsocialmedia.org/fair-use
EFF's Legal Guide for Bloggers - https://www.eff.org/issues/bloggers/legal/liability/IP

| No Comments

Pinterest, copyright, and Terms of Service

[Update, 3/13/12 - some clarifications and additions.]

There's a couple of different articles circulating about a Pinterest user regretfully deleting her Pinterest boards and/or account, because it's just illegal/unethical/morally wrong/too scary/something else. A number of my friends have shared links to these articles or others about Pinterest and legal issues, accompanied by an announcement that they, too, are deleting their Pinterest boards. This makes me sad, for a number of reasons!

  1. While the way Pinterest functions certainly raises a number of copyright issues, they're not significantly different from the issues raised by many other social sharing sites!
  2. A lot of people are talking about how scary the Pinterest terms of service are - but they are not significantly different from those of many other social sharing sites.
  3. These posts create a great deal of fear, uncertainty, and doubt about what users are "allowed" to do online - which for a lot of users, including my friends, has clearly translated to choices not to do those things. This is called a "chilling effect", and it's the whole point of spreading FUD in the first place. It's not a good thing.
  4. There are some unique characteristics of the Pinterest user community - both the fact that a lot of women are using it, and that a lot of photographers and other commercial artists are using it - that are playing into the interactions around the legal issues in some unusual ways. I'm not sure I fully understand it all, but I'm also not sure it's not actually a bit screwed up. 

I have a lot more to say about the first two things, and not much more to say about the third or fourth things right now in any useful form. The TL;DR version is the stuff above. Thought I'd help out you short-attention-span folks.

I'd also add that I've seen a couple of posts in response to these concerns that are NOT raising fear, uncertainty, and doubt, but rather legitimately engaging with the ethical and legal issues. Emily Lloyd's post was interesting; I don't entirely agree, but have had fruitful further discussion, hooray!

Copyright Issues in Social Sharing

The first article I saw about this issue was about a Pinterest user who is a lawyer. This article has REALLY BAD SUMMARIES of that user's understanding of copyright law. The post I'm seeing circulated more heavily more recently is actually the original post by the Pinterest user who is a lawyer. The copyright analysis here is not as badly done, but it is well into the realm of copyFUD (shorthand for "articles spreading Fear, Uncertainty, and Doubt re copyright and fair use".)

[Not to cast any aspersions on my fellow members of the bar - or to suggest anything specific about the experiences of the author of the original post - but it's worth noting in passing here that most lawyers graduate from law school without ever studying any copyright law.]

Pinterest does have a copyright problem - it is not totally obviously A-OK for it to operate the way it does, or for users to use it the way they have been.

The biggest copyright problem is that Pinterest makes copies of the images people "pin". It does not simply create a link to the source image, it actually makes a new copy of the image. (The new copy does link to the source from which the image was pinned, although that's not always the original source of the image.)

When you're making copies, any copies, of copyrightable material, copyright is an issue. But it does not necessarily follow that because copyright is an issue when you make copies, copyright obviously and clearly prohibits the making of those copies. Fair use is one way the law allows people to make copies without permission or payment. The above-linked posts and a lot of other copyFUD suggest that fair use is a) sketchy, b) scary, c) waaay too unpredictable/hard to understand (i.e., scary), and anyway d) never allows copying whole works (except maybe thumbnail images.)

I vehemently disagree with this characterization. While fair use is not a straightforward part of the law, and is not very predictable, it is something that the average user can come to understand, and it does allow for a lot of copying that individuals do. (Perhaps now you want to learn more about use rights in copyright?)

Fair use certainly sometimes allows for making copies of entire works, especially when sharing the whole work is necessary to facilitate commentary on the original. Even where no commentary is being made, the Supreme Court has upheld making copies of entire works as fair use.

There's another reason I think lots of pins may be legal, and it's another fundamental legal underpinning of a lot of web services: implied or express license. If you pinned something at the behest of the original creator (even if they didn't explicitly give you a formal copyright license to do so), that's very likely legal. There are a lot of websites encouraging users to pin their stuff! F'rexample: ModCloth, Homes.com  Since Pinterest is so new, I'm not going to suggest that there's an implied license to pin everything that's public on the web (although that's basically the underlying legal justification of most internet search engines). But I would point out that Pinterest does allow folks to opt-out of letting their image be pinned.

If you're still feeling like fair use is scary (it's not! it's a super-cool engine of creativity, innovation, and free expression!) or too unpredictable for your tastes (fair enough), I'd remind you that there is no explicit legal reason you can print out a webpage or forward an email...

I'm not suggesting that every image every user pinned is obviously a fair use, or covered by an implied license. Lots of users clearly haven't even been aware they're making copies, much less thinking about whether fair use allows them to do so. But I do think fair use probably covers some pinning, and implied or explicit licenses cover some more. At least as much as they cover the random copying users do on Tumblr and many other web services!

Terms of Service 

The Pinterest FUD posts and articles are also highlighting elements of the Terms of Service as problems for users - particularly the indemnification clauses, the clauses where users agree that they will only upload material for which they have the right to upload, and the clauses that include a license of copyrights to Pinterest.

If you are uploading stuff to Pinterest that you don't own or otherwise have the right to distribute, you are probably violating their Terms of Service, and you may be infringing copyrights. If you are violating the TOS, they can... um... cut you off? Delete your account? They can also sue you for breach of contract, and some gung-ho prosecutor could also use a violation of the TOS to bring criminal charges against you, so although those courses of action are unlikely, it might be, you know, a good idea to try to comply with TOSs in general

Or at least, to read them?

These elements of Pinterest's TOS are common to just about ALL USER-GENERATED-CONTENT SITES' TOSs (though I'll admit that Pinterest is somewhat unique (and kinda weirdly archaic in a couple of places) in their specific language and points.) Let's take a quick look around...

Tumblr

Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "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 [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service

YouTube

Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

So anyway. That's my thoughts about the copyright and terms of service issues folks seem to be discussing about Pinterest. Even though it is ridiculously long, I'm sure I left out lots of things, and there are many more thinky things I'm thinking about this, but it is beyond time for me to go home and eat dinner! 

ETA: New post 3/13/12 with some clarifications and additions to this info.

| 7 Comments

About this Archive

This page is an archive of entries from March 2012 listed from newest to oldest.

January 2012 is the previous archive.

April 2012 is the next archive.

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

Find recent content on the main index or look in the archives to find all content.