Tag Archives: fair use

Perfect 10 suing Tumblr How it Affects Pinterest

Perfect 10 vs Tumblr lawsuit only indirectly affects Pinterest.

Paid Content published a piece today about an adult web publisher filing a lawsuit against Tumblr.

In a complaint filed Friday in Manhattan, Perfect 10 claims Tumblr failed to remove unauthorized photos posted by its users. The company, which sells nude model photographs through a magazine and website, says Tumblr not only turned a blind eye to copyright infringement but that its staff uploaded images themselves to jumpstart the business.

This case may help address issues around fair use and safe harbor provisions for image hosts, but there are two potential distinctions from Pinterest.

1. If Pinterest has figured out a way to promptly address DMCA takedown notices, they will avoid this aspect of any potential court ruling. Scaling DMCA takedown processing is a key to the new breed of image aggregation sites, and Pinterest has taken steps to do this.

2. It is unlikely that Pinterest employees ever pinned Perfect 10 photos, but it is possible they pinned images they didn’t have the rights to. When copyright issues came to the forefront in February, Ben Silbermann the CEO of Pinterest, actually modified his board to remove images he might not have the rights to. Pinterest is certainly aware of this issue, and it likely has circulated some guidance to their employees.

This week I posted a video that addresses why Facebook purchased Instagram. While the ability to track who we are connected with (i.e. the social graph) certainly was a key to this purchase, I talked about how images are a big part of the future of the web. Cases like Perfect 10 v Tumblr will help determine the ways we access images and how site are able to aggregate this content.



Is Pinterest the new Napster?

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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