If you talk about any activity you undertake daily on or offline seriously with a lawyer, you will become so scared you'll want to stop doing it. Even the legal ramifications of walking your dog will make your head spin.
No, you won't. I say this as a lawyer: if you're scared of doing something because of the legal "ramifications", then you clearly did not understand what you were told, or you're thinking of doing some really serious stuff.
The lawer in the linked post has an incomplete understanding of copyright law, especially in regards to the fair use doctrine and the DMCA, and indemnity as it is practiced in most of this country.
Not all lawyers are good lawyers. Not all clients are good clients. A lawyer's job is to help the client understand the risks of his actions. The client's job is to decided if the risks are outweighed by the potential rewards. In practice, these roles are often very much confused. What should have been a mere threat assessment becomes strong advice on a course of action. The lawyer overstates the risk in a CYA type way, the client interprets this as a "should do" and everyone feels that the safest thing to do is just to lock themselves in padded rooms. (except for paying the $250/hour legal bill; That's always safe).
Though it looks like lawyers are the only ones profiting from it, also blame the sue-happy culture in the US, and the lawmakers for making that possible.
And due to the chilling effects, only criminals and crazy people even dare to do anything anymore. Others listen to the advice to "be afraid" and sit cowering in their homes.
I disagree with her interpretation on fair use. Adding something to your favorites is "commenting on it"; inclusion is an implicit comment along the lines of "I like this."
A court would have to decide if that's good enough. In the mean time, ignore obscure laws and enjoy your life. The worst case is that you'll get a nastygram. The best case is that you'll be able to make other people's lives more enjoyable by curating a list of good work.
I don't think your position would be very compelling in court. By analogy you could argue that adding a movie to your hard drive is 'commenting on it' because its inclusion represents an implicit comment of liking it. And the courts have already ruled on that. Basically I find it hard to believe that you will get away with copying something by arguing you like it and that's a comment. If you could anyone could copy anything.
I disagree, I think the situation you're talking about sounds like the classical napster/kazaa/bitorrent kid with a ton of songs on their hard drive who is ripe for legal action, whereas the pinterest situation -- even in a worst-case martial-law scenario -- is more like you've streamed a movie to your hard drive from Youku or something like that.
The end user, when they don't have anything sitting in their house, is much less liable to be prosecuted.
> Kirsten likens Pinterest to Napster as an enabler of illegal activity. It wasn't just Napster that went down -- 12 year old girls who downloaded music were sued too.
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> She concludes:
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> "My initial response is probably the same as most of yours: 'Why [can't I pin their work]? I’m giving them credit and it’s only creating more exposure for them and I LOVE when people pin my stuff!' But then I realized, I was unilaterally making the decision FOR that other photographer...Bottom line is that it is not my decision to make. Not legally and not ethically."
Is it me or these two paragraphs look way too much hyperbolic? I have the feeling that the article subtext is something like "In the next months you may hear about this thing called Pinterest. Just ignore it, it is illegal, you will get in trouble. Stick to the sites you know. How much illegal? Remember Napster? Everybody remember Napster."
That has to be the worst summary of Fair Use I've seen in a long time. It's such a short section too, it's a wonder they didn't copy-paste it verbatim like a proper reporter should:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Unfortunately, posting the statute itself is also a horrible, and nearly meaningless, summary of Fair Use as well. The doctrine is so case driven that you simply cannot understand the boundaries without delving deep into the chaotic and often nonsensical caselaw.
This article is from February 28th, and on February 29th Kirsten (the lawyer/photographer) wrote a follow up post to clarify her original post:
To clarify something from my last post — I did NOT delete my Pinterest account.
I merely deleted my inspiration boards that contained work pinned from around the web.
And because many of you are asking, yes, I DO give consent for my work to be re-pinned if you are so inclined.
I will be adding a “pin me” watermark to my work from now on.
With regards to Pintrest's server fetching a copy of the original, it sounds like responsible caching to me.
If it was just a link to the original, then their server would have to take the hit to serve the image. Seems a fair thing to do to.
Imagine a photographer runs his own little site. Has a bare minimum cheapo set up, because he is not Amazon. Now, imagine one (or more) particular high res image gets really popular. Well, it wont take much for his server to get swamped and possibly knocked off line for what ever reason, maybe bandwidth limits on the cheapo set up.
I would argue (for now) that what is happening is not just fair, but responsible too.
A user uploading is no more than a manual version of what the server does.
Depends on your notion of responsible. One thing a webserver does nicely is control access. By copying somebody else's copyrighted work and republishing it, you've deprived them of control of their work. Some photographers may not mind that; some will mind quite a bit.
As far as I understand pinning means copying from source to your own page with help of Pinterest. So if I take Flickr analogy, pinning would mean downloading a photo from user A, and uploading it to your own album.
So obviously you have to have copyright to pin something to your own page. The fact that pinning is much faster then "download/upload" is irrelevant to copyright discussion: you are still uploading stuff to your own page.
Is my understanding correct?
So what is all these fuss?
This panic over Pinterest is ridiculous. Why wouldn't photographers want their images shared with credit attributed to them? Isn't that the whole point, especially if they make them public in the first place?
It's a common fallacy amongst amateur photographers that professionals will be grateful for the exposure, as it will bring them more work. However, professionals themselves disagree:
There is a big difference between using someone's photo without their permission in the work you are creating versus publicly bookmarking their photo.
And you can do either of those methods via deep-linking or copying. Even if use A doesn't copy it's still wrong. But I don't think many people will argue that use B is wrong if it doesn't copy.
The attribution is not next to the image. A pinterest user would have to click on the picture to be taken to flickr and see the author/username. But how many people will do that if the photo is right there, full size, for viewing/downloading/repinning right on the pinterest page?
Most photographers who publish on flickr have a keen interest in their stats: how often their pictures have been viewed etc. With pinterest, the flickr stats do not reflect reality anymore. Thousands of users could enjoy and share the image on pinterest without the author ever knowing about it.
No image on the web is safe from copying, but I find it strange that pinterest makes a copy of the image and chooses to show it without clear, evident author attribution (including the "All Rights Reserved" notice, if applicable) when Flickr allows hotlinking and provides an easy api to pull the author and license information.
I think that if Pinterest would put a concerted effort in to automated attribution that would be highly commendable.
It should be noted that while it's the right thing to do, and that it would be in Pinterest's best interest in the long run, no one has held Reddit or Metafilter or any similar site to such a standard. Artist attribution on Reddit has always been enforced by the community with less-than-stellar results.
What's interesting about this situation from a social point of view is looking at the differences between a Pinterest pin and an Imgur upload.
Giving attribution to imgur would be pointless as it is not a site known for original works. My guess is, the percentage of original images uploaded to imgur by the author is a small percentage.
What makes the connection between pinterest and flickr so interesting to me is that (if I remember correctly) A THIRD of pinterest images come from flickr, and pinterest thrives on using flickr's awesome repository of images against the law and the spirit under which most of the images were uploaded.
I believe I know why they are not hotlinking... if they did, they would immediately get a sh!!load of complaints from flickr authors about their images being used that way. (As anyone can attest who ever hotlinked flickr images on their sites, even WITH author attribution.)
If I were flickr, I would implement a feature "Your image has been pinned on pinterest!" with a notice that the views on pinterest will not register in the flickr stats, and allow the author to send a take-down notice to pinterest by pushing a button.
I meant that people upload pictures to Pinterest and they upload pictures to Imgur, but no one would ever worry about the images they uploaded to Imgur, because it's so anonymous.
I think Pinterest has managed to attract a different crowd from Reddit/4chan. For Pinterest users, it isn't so important to know that at any moment you can retreat behind a cloak of anonymity, whereas Redditors and 4chan users regard it as a fundamental human right.
I'm glad you commented though, I agree with what you're saying and I had no idea about flicker users having a history of people pulling their stuff. That definitely changes the game.
They don't necessarily make them 'public' in the sense you suggest. They may make them available for viewing on a site (distribution channel) that they have approved for whatever commercial reasons they see fit. They have chosen the channel and do rights to control that channel because they may well believe that the channel affects the value of the product.
I would say the act of "Pinning" an article of digital content is an act of comment. It is shorthand for "This is really interesting to me. Maybe you'll like it too?"
>I most certainly could not think of any way that I either owned those photos or had a license, consent or release from the photographer who owned them //
Strikes me that as long as you personally only "repin" content that Pinterest have already provided to you then your personal liability shouldn't come in to play.
Pinterest are providing a user-tagged image search service quite like Google's image search (in legal context at least) IMO. Where it differs really is that the user-tagging is explicit (though I assume that Google still have that tagging "game" in place) and that the images that Pinterest host are larger [full-sized?]. I see re-pinning as akin to providing a link to a Google Image search page; the service provider in both cases has initially made the image copy and the user has simply referenced that and added meta-data.
Now I do think things are a bit more fuzzy in the situation where the user causes the Pinterest service provider to acquire the image. But again it is the service provider that is retaining the copy of the creators work. Moreover if you just choose to "pin it" when you add rather than upload then you don't even locally store the images.
Where things get really interesting to me is if you use Pinterest (which I assume is a USA based service) to get content from another country. Pinterest should find that they're subject to the local laws but the user should only be subject (to my mind) to USA law and their own local laws. This could cause some major problems for Pinterest IMO.
In short, to my view it looks like the liability for any tortuous action WRT copyright lies with Pinterest and not the user excepting if the user uploads directly.
So a lawyer discovers _only after reading a random TOS_ that almost everything you do on the internet (social websites, email forwarding, bookmarks) is illegal? Aren't courses on copyright compulsory in US law schools?
It is discouraging to think that the average open source hacker knows more about copyright than any lawyer. This also explains why you are looked at as an alien when you talk about things like "Creative common" and why they are useful. If lawyers do not understand the perils of current copyright regime, how are we supposed to make others understand?
This article reads like a pre-napster time machine that knows nothing of the last 10-15 years of digital copying/copyright.
I'm sure the Pinterest terms of use were simply holding the user and not the company responsible for any copyright violations. Did she really think that Pinterest has negotiated licensing for all photos on the Internet, or were willing to indemnify a user that isn't paying for a service?
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.
Everytime I see these Terms of Use I wonder, to what extent are they applicable? They can write whatever they want there, but what is enforceable? Example: "By registering to this website the user agrees to the obligation of coming everyday to mike's house and give him a foot massage"
Contract law is complicated and IANAL. In the end it's up to the judge to decide. There are numerous rules of thumb that apply to contracts, like it has to be mutally benefitial, must be a meeting of the minds, both parties must consent, etc.
What would be really cool is terms of use that lets you agree or disagree with entire sections. However, each section you disagree with turns off some functionality of the site with some sections being mandatory for any access at all.
Kirsten turned to federal copyright laws and found a section on fair use. Copyrighted work can only be used without permission when someone is criticizing it, commenting on it, reporting on it, teaching about it, or conducting research. Repinning doesn't fall under any of those categories.
1) Many people leave comments on pins, and group them under certain headings which could be considered commentary ("Favorite places," etc.)
2) Almost every software EULA has similarly scary language that places the burden of responsibility on the user.
3) Few photographers have the means to wage a legal campaign against alleged infringers.
4) Many photographers and publishers only use lo-res versions on websites
5) As others have pointed out, why would a photographer want to shut down someone who is helping to spread the word about their work?
I can answer that last one: "Why would a photographer want to shut down someone who is helping to spread the word about their work?"
It's because landlords don't take payment in public appreciation of the tenant's genius. Although it can lead to some odd outcomes, copyright tries to treat expression as territory so that creatives can eat.
That seems perfectly reasonable to me, and I can understand why photographers don't want Pinterest profiting off their hard work for exactly bupkis in return.
Last year Computerworld just boosted a photoillustration off my website (the top one here: http://www.scissor.com/resources/teamroom/ ) without payment or proper credit. I didn't say, "Yay, eyeballs." I said, "What assholes," and invoiced them. They paid me $250 and apologized, as they should have.
What happened with Computerworld and what's happening on Pinterest are very different.
From what I gather, Computerworld staff took your photo without permission in order to illustrate a story and profit off of that content via advertising and other means.
Pinterest staff are not taking photos from professional photographers in order to profit from them. Its users are sharing the photos with their friends and are often leaving commentary associated with the photos. As far as I can tell, individual users are not able to profit from their behavior, although there may be a subset of users who are able to profit in some way. It is unknown if Pinterest would be able to directly profit from the pins and comments of users.
I would like to ask: If someone pinned that same photo, what would you do? (sincere question)
The situations aren't particularly different: a for-profit business intends to make money via ads run against content they didn't pay for and are republishing without permission.
The difference being that Computerworld recognizes that they screwed up by letting a freelancer boost an illustration, whereas for Pinterest it appears to be their business model. Also, Pinterest's TOS indicates they are legally hiding behind their users, while Computerworld took responsibility for the freelancer's actions.
I'm not saying this is necessarily illegitimate; one could argue that digital culture makes it necessary to look again at the basic notion of copyright. Or perhaps we need some sort of new metadata that lets creative types say "ok to republish X for promotional purposes". And congrats to the Pinterest team for making something that people like. But in Pinterest's shoes, I would be setting aside money for the inevitable lawsuits.
Unfortunately, none of these reasons really holds up in my (non-professional, non-legal, non-advisory) opinion.
1) That commentary rule would hold up if someone posted entire movies and then left comments or groupings attached to them. I don't expect that to work for still pictures either.
2) That argument is null and void as a reason to continue using pinterest.
3) As long as they have sufficient funds to wage a war against me, that's all that matters. I don't have many funds, and none to get into a copyright battle over my scrapbook. And if they're an agency, who knows their resource level?
4) This is your best bet; the principle is similar to the search engine vs. photographer case mentioned in the article. However, the low-res version is still copyrighted by the photographer/agency. If pinterest created a lower-res version for pinterest, then this defence may work.
5) Why do some websites have 'terms and conditions' that forbid linking to them? Why do some people launch a bunch of crazy lawsuits seemingly as a hobby? All it takes is one self-absorbed or mistaken nutcase and your life becomes difficult. Sadly, 9 out of 10 nutcases are either self-absorbed or mistaken. The ratio gets even worse if, for example, the comments listed above say things like "OMG, what a talentless noob! This photograph is shit and the person that took it is a fucked-up idi0t!" And, by Gabe's Greater Internet Theory, this will happen somewhere.
I like pinterest and I love using the internet to discover new and exciting pictures. I've been following interesting picture soups, tumblrs and even Live Journals forever and I don't want pinterest to die. I don't see why this lawyer is so scared though; the DMCA should force the holder to contact pinterest at their abuse address and they should be able to remove the offending image directly, no? Isn't this whole thing a storm in a teacup and an over-reaction?
"That commentary rule would hold up if someone posted entire movies and then left comments or groupings attached to them. I don't expect that to work for still pictures either."
The fair use rules are completely different for movies, so it's not really analogous.
It's re-publishing the entire creative work by a for-profit corporation and its users. If it's not possible to infringe copyright by re-publishing the entire work in this way, then copyright means nothing.
There are substantial differences between movies and other forms of art (i.e,. photos, books, music, etc.), such that what applies to one form may not (and usually, does not) apply to the others.
Even then, she makes the compelling point that it's not your decision to make. Just because you believe it would be best for the photographer doesn't give you carte blanche to do whatever with their works.
Kirsten turned to federal copyright laws and found a section on fair use. Copyrighted work can only be used without permission when someone is criticizing it, commenting on it, reporting on it, teaching about it, or conducting research. Repinning doesn't fall under any of those categories.
Couldn't it be argued that "pinning" something is an implicit endorsement, and constitutes 'commenting on' it? If that's not enough, couldn't they just add a comment and satisfy this? I am not a lawyer, please help?
I very much doubt that a defense and indemnity clause, with no signature attached, would hold up in court to the point where a Pinterest user would actually pay to defend Pinterest.
With that said, the only real way to fight back against crazy EULAs is to stop using services that have them.
With that said, pick your battles. I'm not a Pinterest user but this EULA wouldn't stop me.
I don't know Pinterest, but why doesn't it use the safe harbor provision of the DMCA, as, I believe, most user-uploaded content sites do? Do they think compliance with DMCA would be too costly for them? Are they a small/big company?
Whether or not Pinterest are protected by the safe-harbor of the DMCA, their terms have you agree to reimburse them their legal fees in defending themselves for any content that you posted. That may not stand up contractually, but I can understand someone deciding that's a risk they'd rather not take.
Also...if you run across a REALLY nasty lawyer...they may point out that the content is not ENTIRELY 'User Uploaded'.
It is 'Pin'ed...but TECHNICALLY, Pinterest is going out to get the content and putting it on their own servers. At least I thought that is how it worked. Does anyone know how pinterest is doing this? Is the content coming from the user, or a third party server that the user instructs Pinterest to reap from?
>Is the content coming from the user, or a third party server that the user instructs Pinterest to reap from? //
I actually joined up, on an old invite, in order to test this point. From a very quick look it seems that basically you can pin, repin or upload.
If you upload then you've clearly had a copy. If you pin then you see a copy of the image in your browser but served on the Pinterest site and Pinterest basically copy that image to their servers in order to present it (you've had a copy in your browser cache but I think all attempts to prosecute for that ran out of steam a decade ago). If you repin then you're looking at content that is already on the Pinterest servers and only appears from them, you can click through to find a source from whence Pinterest acquired the image.
To me this looks really bad for Pinterest. Pinterest make a local (ie on their servers) copy of an image that you pin. If you upload it then clearly you've both made copies. In some respects you direct which images they make copies of but they do the copying.
Browser cache is like keeping the shopping in your trolley as you go around the supermarket. "Server-side cache" is stealing the stuff from the Supermarket to sell in your own shop. If you decide to retain something from your browser cache, without acquiring a license, then you just shoplifted it.
[Before anyone says it I'm absolutely not equating copyright infringement and theft].
I am not sure this will work for them if courts decide that their very modus operandi is to encourage widespread copying. Peer to peer companies argued that they weren't copying, just providing a platform and that others were 'abusing' that platform, not them. But I believe the reason they were wiped out was that the whole way they conducted their business effectively promoted such abuse. I suspect it wouldn't be hard to argue that against Pinterest.
That's not going to save you from an investigation, in fact this seems like the worst effective solution since if you're being investigated it doesn't really matter what email address you registered with.
