Pinterest, copyright, and Terms of Service

| 7 Comments
[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

Brilliant, as usual! I've shared this on my blog. Thanks for clarifying this whole mess.

I think the scary thing about Pinterest is that people are told to "pin" graphics from miscellaneous sites that they enjoy or want to share with others.

In many cases the "pinner" does not contact the content owner to ask permission to post the graphical content on Pinterest.

This leaves the door open to speculation that Pinterest may use the content for things like marketing, which could draw the unfavorable attention of the original content creator/owner.

And the terms of service make it clear that, should that happen, Pinterest will simply say "We understood that Jane Doe had the right to upload that graphic. If she did not, then you will need to focus your legal proceedings on her, not us."

Please let me know if I am misinterpreting this, as my wife is a huge Pinteres fan and has been asking me if she now must delete all her boards. I don't know the answer to that.

I think Pintererst has just caught on with a larger amount of people and perhaps from a different socio-economic scale--

As you point out Social Media platforms are a haven of copyright issue. I love Tumblr and for the most part consider myself part of Tumblr Culture with a very successful Tumblr, but I am at the same time appalled and disgusted at the lack of regard, link or credit for the creator. Tumblr is a mass of copyright infringement on top of a pure lack of knowledge on the matter of copyright. Often, I will see a disclaimer on a Tumblr site stating something to the effect "all images are harvested online and therefore considered public domain." People still think- if it's online, it's public domain.

On all of these platforms we rely on people to be ethical and moral concerning copyright and permission of use-- and this simply does not happen.

IMHO it all needs to start with education of copyright in a digital age-- and that education should start the moment a child or individual begins to use internet capable devices-- with a strong emphasis on creator and personal ethics.

Thank you for the blog! Great work.

"Fair use certainly sometimes allows for making copies of entire works"

Yes, quite so, but have you read the complete TOS?

"Member Content
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."

How is Pinterest going to possibly, sell, content that the member is not the owner of?

And how does the embed button to the right of a board, square up with fair use?

The embed button allows any to copy and modify the content and then paste the content on another site.

We need to read a bit more and understand the concerns being raised.

Pinterest, is not merely copying the works, it is modifying content that neither site owns, and very possibly the member does not own.

And then what about the other new start Print-erest where people can print from the pin boards, and keep in mind, the user might not own the content and the site does not own the content, but yet it could get printed.

And attribution is lost.

images.google.com is not a content owner.

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About this Entry

This page contains a single entry by nasims published on March 8, 2012 4:15 PM.

Best Practices in Fair Use - a couple of thoughts was the previous entry in this blog.

A few clarifications on Pinterest/Copyright/TOS worries is the next entry in this blog.

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.

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