Pinterest's Copyright Strategy Puts the Burden on Users
Pinterest, the social network that encourages image hoarding, hasn't done a very good job preparing for the inevitable copyright scandal the site will face. At its essence, Pinterest seems to encourage copyright infringement as it asks users to steal and share images in acts of "delightful, addictive, theft," as The Awl's Choire Sicha aptly put it. With a mission that's defined by illegal sharing, one would think that the site would better prepare itself for legal challenges. It hasn't.
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Kirsten Kowalski, a lawyer who also happens to be a photographer concerned with how the copyright problems would affect her, sifted through Pinterest's policies, and came across the crux of the social network's copyright defenses. From her blog:
And this is where I got really nervous.
In several places in Pinterest’s Terms of Use, you, as the user, agree that you will not violate copyright law or any other laws. And then there is this:
“YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.” (yes, this is in ALL CAPS right in their TOU for a reason).
And then, there is this:
“you agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”
Pinterest puts the burden on the user, rather than itself, asking Pinners (in giant, scary CAPS) to agree that risk related to the "application of services" -- i.e. stealing -- remains with YOU. Further, it emphasizes that Pinterest is not responsible for all the theft the site encourages. That sounds like a foolproof way to keep Pinterest out of legal trouble, and to get users into it, which is why Kowalski deleted all of her Pinboards. Not only is this a good way to scare away followers, but it's a bad way to not get in trouble. This is the Napster way of doing things. Users get sued, then companies get sued.
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In an attempt to fix a problem more have started to notice, Pinterest has gotten a bit more copyright-friendly, setting up a code for sites that would like to block Pinning. Flickr took the offer, blocking the social network from stuff that falls outside of the creative commons domain. But, without a widespread policy theft still occurs. And, Pinterest has yet to take the Flickr route, which asks users to record the rights of images. Probably because this would make the Pinning process less seamless, as Technology Review's Christopher Mim's points out. "By resolving the rights on an image after the fact, Pinterest creates a frictionless mechanism for sharing. Which is precisely why the site has taken off," he writes. Pinterest also has an extensive copyright violation section on its site.
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Pinterest is backing into a wall with this strategy. It either scares away users who don't want to risk getting sued, or it encourages sites to block the social network, making the whole system a lot less useful since, without content to Pin, what's the point of Pinterest? All of these fears, however, depend on the copyright holder caring. Individual photographers, like Kowalski, might care, but so far retailers have yet to complain. In fact, many of them are working with Pinterest, integrating pin widgets on their sites. For now, they apparently see no reason to complain about copyright when all those pins are driving so many sales.
