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Pinterest’s Challenging Copyright Issues, Part 2

Yesterday I wrote about the online image sharing site Pinterest and some of the copyright law questions it raises – click here for the beginning of my discussion of Pinterest copyright issues. Today I wanted to expand on some of those legal issues, and discuss whether individual users should be concerned about liability – can I be sued for copyright infringement just for using Pinterest to share images I find online?In many cases, individuals and companies will embrace having their images shared on Pinterest. If I’m selling shoes, and people on Pinterest are pinning images of my shoes to their “My Favorite Shoes” boards, I’m not likely to complain. On the other hand, copyright law doesn’t operate along the lines of what the majority of marketing professionals would prefer. Rather, the law creates a monopoly on copying these types of works, and, with certain exceptions, it’s incumbent on the party who wants to copy those works to obtain permission. Neither Pinterest, nor, presumably, its users, are going around asking the owners of every picture on the Internet for permission to reproduce them.

Pinterest’s actions may be protected under the “safe harbor” provision of the Digital Millennium Copyright Act, which was intended to protect websites from liability for content uploaded by users. To enjoy this safe harbor protection, the website must promptly take down content when requested to do so by the rightful copyright owner. This is how sites like YouTube stay in business. However, this protection is not without its limits. The U.S. Supreme Court, in MGM v. Grokster, held that “[o]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.” It’s certainly arguable that Pinterest falls afoul of the Grokster standard, and is ineligible for safe harbor protection under the DMCA.

One important note: Pinterest recently implemented a piece of code that allows website owners to block images from being pinned. According to Pinterest’s help page, this can be accomplished by adding the following HTML code to a web page:

<meta name="pinterest" content="nopin" />

I wouldn’t be surprised to see Pinterest face a series of lawsuits on the two points above. Copyright owners will almost certainly object to Pinterest’s unauthorized use of their images (see #2 above), and, in cases where they, themselves, submit their images to Pinterest, they are going to want to have the right to limit or terminate Pinterest’s use of those images at some point. Issue #1 can presumably be addressed internally by Pinterest changing (perhaps retroactively) their terms of service to bring them more into line with those of its competitors, Flickr and Facebook. Issue #2, however, will be much harder to resolve.

It will be interesting to see if Pinterest will be shut down, whether they will be able to defend their perceived copyright violations, or whether they will find a way to reach some sort of accommodation.

One final point: what about Pinterest users – are they vulnerable to claims of copyright infringement? Let’s say I pin an image without getting permission from the copyright owner – something that almost every active Pinterest user has done. Can that copyright owner go after me personally for violating their copyright? While it’s unlikely that an individual Pinterest user will be served with a lawsuit, it’s certainly possible. It’s more likely that the copyright owner would simply notify Pinterest using their copyright infringement takedown policy, and the issue would simply end there. The cost of trying to recover damages from an individual user would probably not be worth the reward, both financially and in terms of public relations. Then again, all it takes is for one copyright holder to decide to take revenge against users who are sharing content without permission.

If you’re concerned about being the one in a million person who is made an example of, you can stay off of Pinterest, or restrict your posts to content that you own, such as pictures you took yourself. Some more broadly applicable advice: only pin images where you think the image owner would want their content on Pinterest – for example, if the owner pinned it there themselves. And definitely avoid pinning images and attaching disparaging or libelous comments about the people or products found therein – that’s asking for trouble.

Keep watching this space for updates about Pinterest; I have a feeling that the sudden popularity of the service is going to lead to some interesting legal maneuvering.

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