Pinterest and the Intellectual Property Conundrum

BlogHer Original Post

Annette from Catnip and Coffee recently wrote a post about Pinterest called The Problem with Pinterest. Annette explained how much she enjoyed using Pinterest (like so many of us) and then introduced "the problem." She's talking about copyright violations. Here's how she describes her dilemma:

I'm personally really struggling with this. In real life I'm a photo editor. I find publication quality photos, I contact photographers, I sign contracts with them, and I PAY them for the use of their images. It's my job and my eyes and brain are trained to look for copyright issues.

cracking copyright symbol
copyright image credit: opensourceway via photopin cc

As Annette explored the image copyright issue, she wanted to know where images were coming from, who shot them, and who was getting the credit for them:

I followed trails back to original sources. A few were linked to the actual photographer. Great! PIN AWAY! Some pins were from Tumblr sites or other blogs that had pulled the images from Flickr or the like. If the original photo was listed as creative commons, well fab, but what if they weren't? Some of the pins I looked at were actually watermarked with copyright information but there was no link back to the website clearly on the watermark. Just as grievous –- that many pins are pulled directly from Google images, a clear violation of any copyrighted image.

Is Pinterest Protecting Copyright?

In the Pinterest Terms of Service, you can find this paragraph:

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.

Pinterest has an About page on Copyright. The page is a form for complaints, and doesn't include any specific information for Pinterest users about copyright issues. In other words, if there is a copyright problem, Pinterest expects the copyright owner to report of the problem.

Pinterest is doing what the Digital Millenium Copyright Act(DMCA) requires. The DMCA creates what it calls "safe harbors" for internet service providers, that allow limits

against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent, effectively allowing individual companies to censor the internet.

Pinterest provides code for you to add a Pin it button to your own blog, along with the following language: "Adding a 'Pin It' button to your product pages or blog posts will allow your customers and readers to pin your products onto Pinterest." They don't mention the copyright issues that might arise from your blog's fans pinning images from your site.

With just the opposite approach, Pinterest has taken action in the last couple of days to provide some code that would make your images unpinnable. As with their Etiquette guidelines and their Terms of Service, this keeps the enforcement of copyright in the hands of the image owners, rather than putting the responsibility on Pinterest.

In If Emily Posted: Post No Bills at Alexandra wrote, Alexandra opines that Pinterest needs to do better at explaining the copyright issues and advising the user about what's safe.

I need Pinterest to explain to me how it's legal to be doing what we’re doing. Tell me what I need to take down and I will. Immediately. I need them to tell me because the legalese is not making any sense. And I usually don’t have a hard time with such things.

What Else Should Be Done?

In another post, If Emily Posted: Safety Pins, Alex talks about going beyond unpinnable script:

The conversations about whether Pinterest is acting as pusher in a sea of potential copyright infringement issues have been incredible. For the most part it assures me of what I truly believe: people don't set out to do the wrong thing, and most, upon learning they are, want to know what they can do to fix it.

I am writing this at the same time many others are asking similar questions, and in the last several days, Pinterest offered some additions to their site, like coding to add to make your site un-pinnable. For some, I think this is a great thing. But those who like Pinterest and want to be able to share our original content with permission, we need other options.

Alexandra goes on to give her readers her own option: a safety pin. She created a graphical widget that tells readers whether or not you're OK with them pinning images from your site. She suggests displaying it prominently on your sidebar. There is a Yes safety pin and a No safety pin.

yes pin
image from Alexandrawrote.com.

no pin
image from Alexandrawrote.com.

Does using these safety pins avoid issues with fair use and implied consent? We'll get to that in a moment.

The Problem, Part 2

Pinterest users often pin things without thinking much about whether they are linking back to the original source of the image, or whether it is an image that can be republished without violating someone's copyright.

Pinterest has a section called Pin Etiquette in its About pages, which says:

Credit Your Sources: Pins are the most useful when they have links back to the original source. If you notice that a pin is not sourced correctly, leave a comment so the original pinner can update the source. Finding the original source is always preferable to a secondary source such as Google Image Search or a blog entry.

The Boston Business Journal stopped using Pinterest and explained why in a post called How Your Business Could Get Sued for Using Pinterest.

Here's why: Believe it or not, Pinterest's service agreement gives it the right to sell images that users upload.

as ReadWriteWeb put it in How You Could Get Sued for Using Pinterest:

In other words, if you upload an image that doesn't belong to you and Pinterest sells it, you could be sued for copyright infringement.

Fair Use and Implied Consent

All this legal discussion certainly confuses me –- a non-lawyer. First, there's the issue of fair use.

Molly McHugh, in Pinterest is blowing up – with cries of copyright infringement brought up the topic of "fair use." Molly cited some precedents:

In 2006, Google was taken to court for copyright infringement over thumbnail images that didn't properly attribute rights holders. The courts ruled in Google’s favor, and a new precedent was set in 2007.

Both Pinterest and its detractors cite the case in their support. Pinterest defenders claim what it does closely parallels Google, and is therefore protected by the same fair use laws. Detractors argue that because Pinterest is circulating content much larger than a thumbnail and using full-resolution images, the laws that shielded Google don’t apply.

From a technical perspective, Pinterest is hosting full-size, full-resolution images on its servers without the rights holders' permission, while also removing reference to the source. It's how the entire repinning, reposting model works. And it's legal -- under current legislation. It's pretty much what SOPA was targeting, but we’ll get to that later.

We'll get to SOPA later, too. Keep reading. First let's take a look at Implied Consent. The writer of this University of Washington article full of information about both Fair Use and Implied Consent points out that just by visiting a site, your computer automatically makes copies of things from that web page. The post continues,

Does this mean that everyone who merely surfs the Internet is liable for copyright infringement and risks being sued? No, because of Implied Consent. Legal scholars argue that that anyone who posts content on the Internet expects people to visit their site. They know that visitors' PCs will make copies in the process, and the website host grants visitors an implied license or permission to make those copies.

To my non-legal mind, that doesn't answer the question of whether taking that material and posting it elsewhere is also covered by Implied Consent. The University of Washington post takes the question of downloading material from a website and using it somewhere else full circle by saying:

To comply with copyright law, you must receive permission from the copyright holder before you download any content. The exception to this is Fair Use.

Business Insider posted a Q&A with a lawyer in Pinterest Might Be Enabling Massive Copyright Theft. A read-through of that article can help you understand where pinning on Pinterest fits into DMCA, fair use, and other laws. But even the lawyer who was interviewed can't answer the legal questions with absolute confidence until, as with Google, there is legal precedent set in a court.

Link with Love

Normally in an article like this, I would end with an admonition to be careful, read the fine print, and -- when pinning -- be aware of who owns images and where the links for those images lead. However, according to this post by Greeblemonkey, there is an organization that wants to help you with that. It's called Link with Love. The site has a noble purpose, but it isn't there yet. Here's how they describe themselves.

LINKwithlove is the idea that by banding together in a "neighbourhood watch" type way -- we, the internet, could teach and learn respect when dealing with intellectual property online. It is our dream that art, music, photography, words, design, ideas, etc - be shared in a way that is respectful, educated and kind.

This site is a collection of links to information, resources and communities that can help protect your intellectual property as a creator of online content. We at LINKwithlove.org encourage you to display one of our badges on your site or social network to show the world that you respect and LINKwithlove.

By teaching and supporting the proper ways to share intellectual property -- we will make a difference.

Link with Love has a ways to go before it's really useful. The sections of the site for learning and for examples of good link practices are empty. I have high hopes for Link with Love, and anticipate they will bring their site up to a more useful condition very soon.

If you use Pinterest, you can do what Link with Love suggests: "Stop sharing incorrectly. Inspire change."

Remember SOPA and PIPA?

Just a few weeks ago, the Internet was in an uproar over two bills passing through Congress: SOPA and PIPA. Both bills were intended to stop the theft of intellectual property by replacing the DMCA with regulations allowing the Department of Justice more authority to order internet service providers to block access to domain names with copyright infringements; to force search engines, blogs and other sites linking to those domain names to remove the links; and to allow individuals and companies whose copyright was infringed to sue.

These two bills were strongly criticized for interfering with freedom of expression. They didn't make it into law, but we haven't heard the last of this debate. The issue of how to protect intellectual property in an age when digital material can be copied and transferred in seconds remains. The concern about balancing the rights of copyright holders and the right of free expression remains. Pinterest and its intellectual property issues is just one part of the bigger issue.

Even if you have no idea what Pinterest is, you need to be informed on when and how it is legal to use others' work. You also need to stay informed about efforts people who lose money because of copyright violations are making to change the situation. The intellectual property conundrum is about money AND rights, not simply about rights. When money is involved in driving change, it is a good idea to stay alert as citizens and as creatives.

Editor's Note: BlogHer recently added a Pin It button to posts on BlogHer.com, per our copyright guidelines and Terms of Service. We're also following the developing story, both as an editorial team and as a company, to come up with best practices for bloggers. We'll share these recommendations in a post on BlogHer.com at a later date.

Virginia DeBolt, BlogHer Section Editor for Tech
virginia.debolt@blogher.com
Virginia blogs at Web Teacher.

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