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.
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?