Monday, March 12, 2012

Is Pinterest Legal?

If you haven't heard of it yet, you will. The latest Internet craze centers on Pinterest - a digital bulletin board site that allows users to "pin" various images from around the Web onto their own personal page. What it's generally used for is to share arts-and-crafts ideas.

As soon as The Nerfherder Gal was spending her usual nightly Facebook time on Pinterest instead, for hours on end, that's when I realized it had hit the big time.

But, here's something for all of you Pinterest addicts to consider... the website itself might not be legal.

Consider the basic idea at the heart of the website - to enable users to easily copy photos from around the Web and re-post them onto Pinterest. Without permission. Without attribution. Just taking someone else's content and using it at will.

Is that not the exact definition of copyright infringement?

Well, it isn't exactly that simple. First of all, the images displayed on Pinterest tend to be thumbnails - something that even Google does, and is considered legal fair use. Sometimes. Second, Pinterest does let content owners opt-out of allowing their photos to be pinned. But the Web's an awfully big place, and all photos can still be copied without permission by default.

Nevertheless, all users of the site ought to at least exercise some caution. One lawyer named Kirsten, who is (or was) a regular Pinterest user, recently deleted her account out of fear of the legal consequences.

She highlighted three things in her narrative. First, the Pinterest Terms of Use state that members are solely responsible for what they pin and repin, and that they must have explicit permission from the owner to post everything. Truthfully, no one using the site does this.

Second, the Terms of Use state in all caps:

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.

So should any copyright lawsuits arise, you're on the hook; not the website.

Third, the cost of any legal fees also falls on backs of users. Again, the Terms of Service state:

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.

So basically, if the owner of a picture you pinned sues you for copyright infringement, not only do you have to pay for your lawyer and any subsequent charges, but also for Pinterest's lawyer and subsequent charges.

It's interesting that, when faced with these copyright questions, many Pinterest users are putting forth the same defensive arguments that we've seen in the realm of digital music piracy - "It shouldn't be illegal since, rather than stealing, I'm actually driving traffic to the photographer's or merchant's website", or the ever-amusing, "How can it be illegal when it's so easy to do, and a website lets me do it?".

Many observers have been looking to music piracy as a reference point in order to gauge Pinterest's legal fate. But don't be surprised if the reverse ultimate holds true - that the fate of Pinterest in the courts will have a lasting effect on the music piracy issue instead.
  

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