Update 2/19: Pinterest now allows websites to opt-out.

Pinterest is disrupting the world of images much like Napster did with music. The rate of usage reflects the fact that, like Napster, those who use the service often become addicted to getting access to the best content in one place, in this case images. Like Napster, most of the “content” is actually posted in violation of both the law as well as Pinterest’s own terms of service. Pinterest got big so fast that it has been difficult to scale their policing of copyrighted images. Despite these similarities, it is unlikely Pinterest will go the way of Napster because all of these violations of both law and rules, don’t seem to hurt any constituency enough to bring about the kind of formal and informal pressure that eventually made Napster go away.

99% of pins are likely in violation of Pinterest’s Terms of Service.

People love Pinterest for a variety of reasons, but the core of it comes down to the best images on the web all being available on one web site, and users being able to easily express themselves using these images. If a user sees an image anywhere on the web, they are just a couple clicks (with the Pinterest bookmarking link) from pinning it to their board and thus onto the Pinterest site. This is how Pinterest is used by almost every user. In fact, Pinterest encourages this usage:

Once installed in your browser, the “Pin It” button lets you grab an image from any website and add it to one of your pinboards.

The problem with this is that Pinterest’s own terms of service states that you need to be the owner of or have explicit permission including all right, licenses, consents and releases to pin any image to their service. I added bolding to the key point:

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.

With the vastness of Pinterest it is impossible to come up with a precise number of pins that violate this Terms of Service, but a review based on those users I follow personally, the accounts @free follows, and looking at how other people use the service, leads me to believe that likely 99% or more pins wouldn’t meet the strict wording Pinterest’s own terms of service.

If you use Pinterest, think about the last time you pinned something where you had a the full rights to do so including consents and releases. It simply doesn’t happen. The only time this would be the case is when you are pinning your own images or those you own.

Is it illegal? The difference between Pinterest and other image aggregators.

Some will say that Google images essentially does the same thing, so there can’t be anything uniquely wrong with Pinterest’s approach. Sean Lock in several informative blog posts tackles the issues of whether Pinterest is protected by copyright law since they don’t actually create the pin as well as if fair use protects Pinterest.  In both cases Sean believes that Pinterest is in violation of the law.

In the case of Google, the images are only small thumbnails and they go away if they are removed from the web site they are drawn from. As this comprehensive post on the legal implications of pins states:

Say you remove a photo from your own site in order to sell it. Or say you find a copy of your art posted illegally on someone else’s website and ask them to remove it. Once the image is removed, Google automatically drops it from search results, but Pinterest’s full-sized copy of the image remains.

Flickr can more easily police images because they require that users upload them from their hard drives. Pinterest’s popularity comes from the ability of users, and the implicit blessing of Pinterest, to take images from any site and pin them with just two clicks.

How can Pinterest solve these issues?

The short answer is they can’t. Their whole model is based on users being able to link to any image on the web. Taking away that ability, takes most of the fun and interest out of Pinterest.

The long answer is that they can…

Try to appease the squeaky wheel and continue to work within the copyright law.

If a photographer, publisher or blogger (who take photographs) wants an image taken down, Pinterest should make it as easy as possible to do. If Pinterest can make it easy for those who are unhappy with their work being pinned to have it removed, they can appease those who are frustrated with the service. The problem is that manual takedown of images is always difficult. It is particular difficult because Pinterest got so popular, so quickly. Their current solution is for the rights holder to complete a full DMCA Notice of Alleged Infringement Notice. Pinterest Copyright Agent is listed as Ben Silberman of Palo Alto, and Pinterest provides a mailing address, phone and email address to contact.

In working on this post over that last three days I called the number twice. The first time on Monday I got a message that the voice mail was full. In a call today, I was told to leave a message for the Google voice mail user. The DMCA copyright requirements are rather time consuming, and it is entirely possible a popular photographer could have to complete the process on almost a daily basis to keep up with violations.

Use the publisher “Pin It” button to explicitly give permission to pin.

Pinterest has been encourage publishers to add a “Pin It” button to their relevant pages. This allows user an easy way to pin the content on the page they are visiting. It is conceivable that if legal pressure became too great, Pinterest could only allow content from pages that specifically have a Pin It button. This would allow for an explicit acknowledgement from the publisher that they want their content on Pinterest. This doesn’t solve the issue of publishers misusing copyright images, but it would go a long way to resolve the broad misuse of images. Based on Pinterest’s popularity, it would result in a mad rush of publishers adding Pin It buttons to their site to take advantage of the chance to getting their content on much slimmed down, but still popular site.

Pinterest is unlikely to go the way of Napster.

There are few reason for this.

  • Everyone loves Pinterest.
  • Even those industries “hurt” by theft of images on balance are benefiting from Pinterest.
  • Consumers are not the main source for the licensing of photographs and images.

Everyone loves Pinterest.

To put it more precisely, those who love Pinterest, really love it (insert one of your friends’s comments about how addictive it is here). Those who don’t like it, don’t hate it. A passionate user base is not a legal basis to violate the law, but it does provide a significant consideration for organizations trying organize a lawsuit to go after one of the most loved sites on the Internet.

Napster was disruptive to a major entertainment industry who felt they got nothing from its existence. The only group who is actively questioning the legality and benefits of Pinterest are photographers, graphic designers and a few bloggers. Whether a select group of them would work together to sue Pinterest is unknown.

Pinterest on balances benefits photographers.

Even in this group, most who actually pin themselves or have readers pin their work are getting so much traffic from Pinterest, that it is easy to overlook those pins of their work that don’t link back to them. Traffic is the not the same thing as making a living, but it does provide some compensation for the use of one’s images on Pinterest.

Consumers have never been the main source of licensing dollars for photographers.

While tens of thousands of photographers in the U.S. make their living shooting weddings, graduation photos and a variety of pictures for a consumer audience, this group generally isn’t losing money when their pictures are place on Pinterest. In fact, it can be a good source of leads if the pins are being posted by users in their community. These photographers are selling based on the relationship and subject matter. This group of photographers isn’t selling to everyone, they are selling based on the subject matter being of interest to their specific clients (and in most cases the photos are actually of their clients).

This situation contrasts sharply to Napster where in a matter of months, many young people stopped purchasing CDs since they now had generally unlimited access to music for free.

Those photographers who make a living selling their images to corporations and news outlets have a high degree of protection, because their end users are businesses that make it a practice of licensing images. These businesses are not going to be pirating images off Pinterest to put in their publications and presentations.

Violations do exist.

All of this said, photographers have valid claims that their work is being misused and stolen by Pinterest users, and this violation is being facilitated by Pinterest tools. As Pinterest continues to become more and more popular, it will be interesting to see how they handle these issues both in the court of public opinion and likely in literal courts.

 

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15 Responses to Is Pinterest the new Napster?

  1. There are two basic reasons that you’re article is completely off base.
    1. Pinterest is a bookmarking site and original content is not posted there.
    2. Pinterest shares thumbnails of images not the originals. Given the legal precedent set in Perfect 10, Inc. v. Amazon displaying thumbnails of copyrighted material is permitted.
    http://writ.news.findlaw.com/dorf/20070523.html

    Your article is so far off I’d go so far as to say you should remove it or completely rewrite.

    • avatar Sean Locke says:

      Your two comments are so far off base, I thought I’d copy them in case you deleted them.

      “There are two basic reasons that you’re article is completely off base.
      1. Pinterest is a bookmarking site and original content is not posted there.
      2. Pinterest shares thumbnails of images not the originals. Given the legal precedent set in Perfect 10, Inc. v. Amazon displaying thumbnails of copyrighted material is permitted.”

      1. Pinterest is nothing but a storehouse of original content copied from other locations, 99% of the time, without permission.
      2. Pinterest copies full size images and permanently stores them on their servers, not thumbnails. And the display of thumbnails was permitted for various reasons which do not apply to Pinterest.

      I’m not sure you even read the article before posting.

      • A little hostile aren’t we? I’m not deleting my comment I stand by it.

        I have news for you Pinterest is but a microcosm of the web. How Pinterest works is how the Internet works. People link and share images all the time. Pinterest is merely facilitating the sharing via curation. 600px images are debatable as stealing original work. RSS feeds copy images and repurpose them all the time for the sake of curation. Pinterest appears to be the current pinata of those that fear the worst about the Interent. If your images are online then they’re going to be shared in this day and age. Normally I’m a proponent of image protection and copyright, but the type of use provided by Pinterest is not a case of malicious infringement. The only thing debatable about what they do is provide a larger thumbnail for viewing before linking to the site referenced in the pin.

        As for the image size the maximum size publicly available is 600px wide at the longest dimension. Full size as in greater than 600px are not available.

  2. avatar Josh Davis says:

    Thanks for the comment Jim.

    In the Perfect 10, Inc v Amazon case which you cite, there are two distinctions between that use and what Pinterest does.

    1. Unlike Google, Pinterest actually host a usable image and not just a thumbnail. You can get up to 600 pixel wide image hosted on the Pinterest site when you click on any image in the stream. That goes beyond just thumbnail size. One of the four test the court often uses is “the amount and substantiality of the work copied”. In this case the image Pinterest displays could easily be considered a usable copy.

    2. Google avoided fault by providing the images as part of search (i.e. their collective use of images was different than what any one image was originally used for). In the case of art and photography, as any Pinterest user will tell you, Pinterest is hosting images that literally entertain.

    The Wikipedia explanation of the ruling, and I have seen other similar interpretations in the past, states:

    “The appellate court ruled that Google’s use of thumbnails was fair use, mainly because they were “highly transformative.” Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information…”

    http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc.#Court_Case

    So I think there are key distinctions in this situation. And the link you provide actually speaks to those distinctions.

    If I have missed something crucial, please let me know. Otherwise I appreciate you having taken the time to extend the debate on this topic.

    • I think the definition of a thumbnail is up for debate. Clearly Pinterest is pushing the boundaries of what is considered a thumbnail. I can see the argument both ways on the 600px image. More likely their choice in hosting the image is to improve performance and reduce the number of image breaks as individual sites go on/offline from server outages. It would be interesting to know when and if they purge their cache of images. Seeing that the larger “thumbnails” (really 600px isn’t that big and “usable” is debatable other than for blog and banner use) are intended to link back to the source location one could argue they’re working to facilitate connectivity. Clearly their business model leveraging Skimlinks sets that tone… as they only make money if they facilitate a transaction.

      I had an interesting exchange with someone about your article on G+ and it came up that Pinterest would be well served referencing meta robot tags or an equivalent so photographers can opt out of having their work absorbed into their service. And under closer examination that is indeed offered:
      http://pinterest.com/about/help/

      As for the Perfect 10 indeed the transformation aspect was key. Is there transformation on the smaller images? I’d say yes. Is there transformation on the larger images? I’d bet a court would say no, but odds are that will be remedied before a complaint ever makes it far long the legal system. Would a class action lawsuit stand to address this? I doubt it, but that wont’ stop a lawyer from tackling it.

      Overall I don’t think there is a huge issue here. While they certainly are pushing the boundaries of what is legally permissible under dated laws they are offering mechanisms to opt out via the meta tags. This is a tact that was adopted and worked for search engines.

  3. avatar Sean Locke says:

    One question that arises, is, why is the onus on the artist to opt out of allowing infringments? Why isn’t it opt in to give permission for pinning.

    Not to mention, many artists, like on flickr or wordpress, don’t have access to place a meta line on their pages.

    • Is Google infringing by pointing people to your web site with thumbnails of your images? I’d argue and bet you agree that there is a larger good that is attained by their ability to bring traffic to your web site. They too offer opt out meta tags and its been established as a norm the courts and individuals can live with. Why not worry about providing incentives to companies to help you bring traffic and business to your site versus trying to build walls to stop them from finding and sharing our content to a broader audience.

      Flickr has sharing settings that you can restrict sharing. WordPress has plugins that allow you control meta tags and you can hand code in the needed meta tags.

      Photographers need to look beyond their own nose with this type of thing. There is a larger benefit to be leveraged to your advantage. Photographers would be better suited to keep an eye on exploiting new opportunities versus constantly clinging to archaic copyright laws to stop progress from happening.

      Copyright is a valuable tool to use for serious exploitation, but facilitating sharing is not a serious exploitation. I will be the first to say they can tighten up their service to make photographers feel more confident with their site and intentions, but by and large they’re not the poster child for copyright infringement they’re being made out to be. Flickr and Facebook have done and continue to do far worse things and I’ve written about many on my blog.

      • avatar Sean Locke says:

        Sorry, I don’t fall into the “‘free’ marketing/traffic means its fine” camp.

        People using “free” (stolen) content to build their businesses on Pinterest is no different than someone stealing work to put on their blog.

  4. avatar JR says:

    Might be a fair comparison but Google does pretty much the same after they stepped over fair use with displaying fullsize images.

    Pinterest has taken it one step farther with hosted the images and now placing advertising next to images. They will find many problems as they display content of heavyweights and place ads next to the copyrighted material

    Here’s Adsense’s line in respect to displaying ads next to copyright content “Google aggregates and organizes information published on the web; we don’t control the content of these webpages.”

    In the end they disable a publisher or get them to remove content when i say you are indirectly supporting their actions by supporting their revenue stream.

  5. [...] week I wrote about Pinterest’s potential copyright violations. Pinterest is taking these issues seriously and implementing changes to better allow publishers to [...]

  6. avatar Mitch Labuda says:

    The TOS on Pinterest, states;

    “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.”

    Sell? How does a site sell something that a member has pinned and which the member does not own? Can a member own a link to my art on another site?

    http://pinterest.com/about/terms/

  7. avatar Martin says:

    People who defend the copyright violating crowd sourcing business on Pinterest have mostly a few things in common.

    1. They think they can use the site to their advantage i.e. making money by pinning their own stuff or affiliate stuff or driving traffic to their website/shops etc.

    2. The condition for thinking so is that they haven’t either read the TOS , did not understand them or simply neglect them in order to follow their business plan.

    The Pinterest TOS clearly state that the site shall not be used for commercial purposes.

    Quote
    General Prohibitions
    You agree not to do any of the following:

    Use the Site, Application or Site Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;

    Unquote

    Apart from that pinning your own stuff in excess is also against the Pinterest etiquette.
    As to visual artists I do not think that there is the slightest benefit in establishing a parallel gallery on Pinterest as some seem to do. Quite opposite, artists who need to pin their own work to promote it must have some sort of problem I would guess.

    • avatar Josh Davis says:

      Hi Martin.

      You make some good points. It has become pretty clear that Pinterest TOS overreach in almost every direction. This is not uncommon in terms of TOS of other sites, but Pinterest might be a little more extreme.

      Some photographers have actually gotten substantial traffic and gigs from Pinterest, but that doesn’t mean it is for everyone.

  8. avatar meighan says:

    I was using Pinterest everyday and loving it. However I worked for a company that their whole model is based on UGC. Copyright and Fair Use are very important in this realm — Pinterest’s ToS was pointed out to me by a colleague (my boss actually). After reading it myself and doing research, I just couldn’t use it anymore. I haven’t deleted my ‘pins’ or my account as some others have…honestly, I am hoping they change their ToS.

    It’s a dicey and overreaching ToS. Claiming to own, and store actual images and what’s more to be given ‘royalty-free license’ and to possibly ‘distribute, license, sell’ images that are not by rights actually their’s just because their users ‘pinned’ them on their site is no bueno. And honestly, just not ok.

    I have used the no pin code on my site…it’s just a bandaid. Readers can click on images which open in another window, which they can then pin. Which is worse as then there is no direct link back to the story. >.<

    But, I will say it's a great product and a wonderful way to share information. I hope to use it again, once they shift their ToS. From all that I have seen from Ben the founder, he seems like a reasonable dude. Let's hope they come around.