A Note from Matthew Levy: This post represents my personal opinions. These opinions should not be attributed to Cloudigy Law or anyone else associated with the firm. I am solely responsible for this content.
There’s been a bit of excitement recently around Pinterest, the website that lets people “pin” images they find around the web and share them. For example, an article in the Wall Street Journal speculated about the viability of this business model that seems to be based on copyright infringement. But the opinion piece that’s really gone viral is a blog post by (non-IP) lawyer and photographer, Kirsten Kowalski, who deleted her “inspiration boards” for fear of being held liable for copyright infringement. (In an update last week, Pinterest’s founder, Ben Silbermann, reached out to her.)
I got interested and started looking around the site. After reading through Pinterest’s terms of service and other policies, I decided that there was no way I would ever join the site. My concerns are a little different from Kirsten Kowalski’s, however.
If you haven’t used Pinterest, there are two ways to put images up. The first is to upload them—that’s certainly a problem if you don’t have the rights to an image you upload. But the main way people pin images is by giving Pinterest the URL of the image, which Pinterest then fetches and adds to its website.
Can you infringe copyright if you send a URL of an image? While I don’t want to predict what a court will say, the answer should be no. A URL identifies a location of a resource on the Internet (URL stands for “Uniform Resource Locator”). The URL itself doesn’t have any information about the resource. Under the Copyright Act, a “copy” is a “material object … from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” There is no machine or device that can take a URL and reproduce the image (or other resource) that it ultimately points to on the Internet. I won’t get into the information theory (information theory is a branch of mathematics that explores how easy it is to describe a piece of information), but there just isn’t enough information in such a short string of characters to convert it to a “copy” of a work under the Copyright Act.
So I don’t think that by giving Pinterest the URL of an image you can directly infringe a copyright in the image. Of course, a court might not agree with me, and there can still be a way that you get tagged under an indirect copyright infringement claim. But the risk of infringement isn’t my main complaint about Pinterest.
An Offer I Can Refuse
The problem I have with Pinterest is its terms of service (TOS). It is among the most one-sided terms of service I’ve ever seen, even though Pinterest’s entire value comes from its users posting links to images.
First, Pinterest tries to put users completely on the hook for infringement or any other legal claims that might come out of content they pin (which Pinterest then posts):
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.
There are also clauses requiring a user to warrant that any content she pins or uploads isn’t infringing.
OK, so you might think that the safe option is to just post your own images. While that’s not forbidden, it’s discouraged by Pinterest’s “Pin Etiquette”:
Pinterest is designed to curate and share things you love. If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.
There’s no guidance on the site (at least not that I could find) advising users on how to ensure that the images they pin are licensed. So Pinterest encourages users to go find third-party content and pin it, but wants to hold users completely liable for any mistakes they might make. And it doesn’t give any guidance on how to avoid such mistakes.
What do you get in return from Pinterest? Not much. Pinterest disclaims any warranties and makes no guarantees that its service will be available or work. If Pinterest breaches its TOS or its site causes damage to others, it actually limits its own liability to $100:
IN NO EVENT WILL COLD BREW LABS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR SITE CONTENT EXCEED ONE HUNDRED DOLLARS ($100).
That’s right: if you mess up and send Pinterest a URL of an image that gets Pinterest sued, they expect you to pay thousands in legal fees along with any damages. If they make a mistake (or even deliberately breach the TOS), you can’t get more than $100 in compensation.
And just to show a little more chutzpah, if you make a suggestion to Pinterest to help them improve their service, you just signed away all your intellectual property rights in the idea. As an intellectual property attorney, this provision really bothers me:
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or through the “Contact Us” section of the Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Cold Brew Labs and you hereby irrevocably assign to Cold Brew Labs and agree to irrevocably assign to Cold Brew Labs all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, trademark, moral rights and other proprietary or intellectual property rights therein. At Cold Brew Labs’ request and expense, you will execute documents and take such further acts as Cold Brew Labs may reasonably request to assist Cold Brew Labs to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Suppose you have a patent and you send Pinterest a suggestion that they should consider using your invention. You might have just agreed to assign Pinterest your patent. You almost certainly just gave them a free license to use it. Oh, and that provision applies if you just use the site—you don’t have to be a member.
Pinterest also claims an irrevocable non-exclusive license in any of your own works that you upload, which would mean you can only remove your work if Pinterest decides to allow you to. I’m not so sure the license is irrevocable, given that Pinterest hasn’t paid anything for the content, but at a minimum it’s an obnoxious provision. You won’t let people delete their own content? Really?
That’s not my idea of a reasonable bargain. The TOS is so one-sided, I’m not persuaded that a court would even enforce some of these provisions. And there’s a significant question as to whether the Pinterest site is actually entitled to protection under the DMCA. There are plenty of law journal articles that can be written about all the potential legal issues this business model and TOS create.
But I won’t sign up with Pinterest for a much simpler reason: Pinterest’s goal is to make money off of the content its users submit while shifting as much of the downside risk as possible to those users. Tails, Pinterest wins. Heads, the users lose.
This is exploitation. Without a solid user base, and people who are freely sharing and exploring content, a social media site like Pinterest is worthless. You’d think that Pinterest might want to make it safe for those users to contribute the content on which Pinterest’s future depends.
Pinterest’s failure to acknowledge or reward the value it’s getting from its users is, in my opinion, a serious blunder. Regardless, I have no desire to help Pinterest make money (however it is that it makes money), given how little it seems to appreciate the people who’ve made it what it is.
And that’s why I’m not signing up.