Traditional Pinboard

For the social networking crowd, Pinterest is an explosive (and admittedly addictive) new fad. The wildly popular website panders to the millennial generation’s fascination with online soul-baring by replacing traditional social networking profiles with more aesthetically pleasing user pinboards. These boards allow Pinterest members to flaunt their favorite recipes, vacation destinations, home decor, and anything else imaginable by pinning images to pinboards, then sharing the boards with friends. Essentially, Pinterest is scrapbooking for the 21st century.

To create personalized pinboards, users are able to upload their own content directly or, as encouraged by Pinterest, post content from other websites with a simple 2-click method. Pinterest does provide a terms of service section explaining that users are forbidden from pinning material they do not own or have explicit permission to use. However, it doesn’t take a copyright expert to realize that most of the popular images featured on Pinterest are posted and repinned without requisite ownership or permission. In fact, social media commentator Josh Davis suggests that nearly 99% of the images featured on Pinterest boards are posted in violation of Pinterest’s explicit terms of service.

What does this mean for Pinterest? The website maintains that it sufficiently warns users that they must obtain permission from content creators before posting material they do not own. In fact, Pinterest explicitly states that users are responsible for all content they share and solely accountable for legal violations arising from their use of the site. Additionally, Pinterest contends that it acts in accordance with the Digital Millennium Copyright Act (DMCA) to “respond expeditiously to claims of copyright infringement committed using the Pinterest website.” In February, the website even introduced a “nopin” tag option for content owners. Once added to an online image, the “nopin” tag prevents the image from being posted on Pinterest.

Unfortunately, Pinterest’s attempts to wash its hands of liability for copyright law violations are not stopping bloggers from dubbing Pinterest the “new Napster.” Like Napster, Pinterest serves as a platform that arguably facilitates users in sharing content in violation of federal copyright law, which prohibits reproducing, publicly displaying, or distributing copyrighted material without ownership or permission (with the exception of “fair use”). However, an important difference between Pinterest and Napster is that Pinterest purports to operate under DMCA safe harbor protection, while Napster was not eligible for such protection. In Pinterest’s own words: “Pinterest provides a service platform through which people share images, videos, commentary and links with friends or others. The Digital Millennium Copyright Act (DMCA) provides safe harbors for exactly this type of platform. If a copyright holder objects to any of the postings—and so far very few have objected—Pinterest will follow the safe harbor procedures set forth in the DMCA.”

Additionally, unlike content featured on Napster, much of the material posted on Pinterest displays the original source link and, with or without this original source link, is unlikely to damage any party enough to generate the formal and informal pressure that obliterated Napster. Specifically, reposting copyrighted images on Pinterest is not likely to usurp the market for those images in the way that sharing copyrighted music on Napster led to a significant decrease in the purchase of CDs. Pinterest even maintains that numerous companies have voiced appreciation for the publicity generated from company images being posted on the Pinterest website, as many of the images serve as advertisements for particular products.

For the above-listed reasons, much of the legal community speculates that Pinterest will not have a fate akin to that of Napster. However, even if Pinterest is not quite as sinister as Napster, shouldn’t it do a bit more front-end gatekeeping to prevent users from wrongfully posting copyrighted material? If so, what?

- Julie Latsko

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7 Responses to Will Pinterest Get Pricked for Copyright Law Violations?

  1. Mike Ritter says:

    Pinterest will probably keep a close eye on how MegaVideo is treated with regard to linking to copyrighted material. The difference between Pinterest and MegaVideo is that MegaVideo linked to known copyright violation websites while Pinterest generally links directly to the copyright source.

  2. Susan Reilly says:

    I don’t think that Pinterest can fairly be compared to Napster, for the reasons you enumerated in your post, Julie, and also because of the nature of the content being “shared.” Pinterest shares content by showing, demonstrating, and aggregating for viewing purposes. Napster, on the other hand, actually transfered possession of digital music files to other users, at which point they “owned” the non-unique file for all intents and purposes, to do with what they please.

  3. Whitney says:

    While I don’t believe the images are transformative, I also don’t believe there is much harm in the usual method of pinning and repinning–that is, posting a photo along with a source link that remains associated with the photo. As a Pinterest user, one of my favorite (and arguably the primary) aspect of the site is the ability to link back to the original source. Once there, I am able to buy the product or find the recipe. Certainly Pinterest includes purely aesthetic images (which perhaps should be treated differently from product “pins”), but a large portion of Pinterest users appear to engage in pinning items in the fashion, home decorating, wedding, and cooking industry. In this case, isn’t Pinterest just providing extra traffic and visibility for the source website?

  4. Building upon Shane’s discussion, the fact that Pinterest, in most instances, removes the metadata from the images in addition to storing them on their servers could prove to be problematic.

  5. JL says:

    Very good points! Shane, I agree that a fair use defense may be applicable for Pinterest; however, I’m not so sure that the Perfect 10 v. Amazon approach is a close enough fit. While Google prevailed on the fair use argument in that case, Google uses thumbnails and does not provide “full-size infringing photographic images for purposes of the Copyright Act.” In contrast, Pinterest often stores/provides full images, thus straining the parallels between the two content providers. For an interesting discussion of how Pinterest can make the use of images more “transformative,” and perhaps more in line with fair use, check out this post: http://www.forbes.com/sites/kaifalkenberg/2012/03/15/a-one-word-fix-to-pinterests-legal-problem/

  6. Shane Valenzi says:

    I think the issue here isn’t whether Pintrest is creating any market harm, but rather whether the images/links posted are truly “transformative” from the original source material such that Pintrest could claim a robust fair use defense. Past cases have indicated that thumbnails of source images are transformative, so it seems that a court might rule something similar here. This result seems especially likely since, as you say, Julie, the users are not posting the images for profit. Additionally, the material is factual, not fictional, and there is little to no market harm, as there’s no reason to believe anyone would substitute the material on pintrest for actually visiting the sites directly. It seems Pintrest has a robust fair use defense in its future.

  7. Paul says:

    It seems that at least some copyright holders, like Getty Images, are not going after Pinterest because right now Pinterest is hemorrhaging money in server costs.

    However, once Pinterest is able to monetize its immense popularity, copyright holders will begin to demand that Pinterest license the right to use their images. Once this happens, we’ll see if Pinterest is within the DMCA safeharbor it believes it’s operating in.