10 ms·

A Lawyer/Photographer Just Deleted All Her Pinterest Boards Out Of Fear

63 points by steve8918 15y ago

mattblalock 15y ago
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?"
- gaius 15y ago
  But Pinterest doesn't link to it - it retrieves a copy and makes it its own content.
  - pbhjpbhj 15y ago
    >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. This is of course not legal advice.
- rmc 15y ago
  Unfortunatly it's up to a judge to decide if that's the correct interpretation which partially depends on what the lawyers convice them of.
  - mattblalock 15y ago
    Everything fun in life boils down to that, eh?
nextparadigms 15y ago
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?
- gaius 15y ago
  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: http://www.pdnonline.com/pdn/news/Morel-Wins-Pre-Trial-1388.shtml http://www.pdnonline.com/pdn/news/Morel-Wins-Pre-Trial-1388....
  - Dylan16807 15y ago
    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.
- petegrif 15y ago
  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.
- OneBytePerGreen 15y ago
  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.
noonespecial 15y ago
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.
- rprasad 15y ago
  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.
  - noonespecial 15y ago
    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).
    - CamperBob 15y ago
      Not all lawyers are good lawyers. Not all clients are good clients. Far more important, not all judges are good judges, and hardly any jurors are good jurors. Hence the (correct) advice to "Be afraid."
    - wladimir 15y ago
      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.
ilamont 15y ago
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?
- pyre 15y ago
  > 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? So long as attribution is retained; otherwise, it's just another random photo.
  - nirvdrum 15y ago
    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.
- nagrom 15y ago
  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?
pron 15y ago
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?
- petegrif 15y ago
  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.
- bilbo0s 15y ago
  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?
  - pbhjpbhj 15y ago
    >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.
vasco 15y ago
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"
- pron 15y ago
  That, as always, would be up to the court.
- petegrif 15y ago
  I am pretty sure that foot massage clause is in Apple's ToU. Everything else is.
- joelhaasnoot 15y ago
  It all comes down to in most cases to what the court deems "reasonable expectations", which that would likely not fall under.
- rmc 15y ago
  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.
- biot 15y ago
  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.
rmc 15y ago
We need some copyright reform. There are many many things that are illegal that shouldn't be.
jrockway 15y ago
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.
- arkitaip 15y ago
  The key word is interpretation. Why would she risk facing the justice system simply because someone else's interpretation differs from hers?
  - jrockway 15y ago
    Why risk doing anything? If I go outside, I could get hit in the head by a meteor, killing me instantly. But I go outside anyway, because I like to.
- petegrif 15y ago
  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.
  - bgilroy26 15y ago
    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.
tomp 15y ago
Solution: use a fake email address.
- Jach 15y ago
  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.
- rprasad 15y ago
  Counter: subpoeana Pinterest for the IP address(es) used to access its site using that email address, then subpoena the ISPs.
  - pbhjpbhj 15y ago
    Tor would do it. Also not copying images locally (so no uploads) would appear to remove any personal liability despite what Pinterest may wish to claim.
  - burgerbrain 15y ago
    If they want to waste that much money to learn that I only use public wifi, more power to them.
    - CamperBob 15y ago
      Exactly. I wonder how many threatening letters the average Starbucks location receives per month?
Jach 15y ago
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.
- liber8 15y ago
  It is a horrible summary of Fair Use. 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.
abruzzi 15y ago
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?
- antiterra 15y ago
  Why are you so sure? Did you not read this: 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.
gioele 15y ago
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 kind article is a nice addition to "No copyright intended": https://news.ycombinator.com/item?id=3340224 https://news.ycombinator.com/item?id=3340224
gioele 15y ago
> 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. > > She concludes: > > "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."
- burgerbrain 15y ago
  Yeah, that section bothered me to. To be blunt, I have to wonder if this 'lawyer/photographer' is not a 'concern troll' (http://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_troll http://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_tr...)
milkshakes 15y ago
from the article: 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?
alan_cx 15y ago
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.
- wpietri 15y ago
  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.
feralchimp 15y ago
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.
tlogan 15y ago
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?
yurisagalov 15y ago
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. http://ddkportraits.com/2012/02/my-date-with-ben-silbermann-following-up-and-drying-my-tears/ http://ddkportraits.com/2012/02/my-date-with-ben-silbermann-...
cdvonstinkpot 15y ago
Potential solution: Take a photo of a photo and post that, then you own the posted image. It's a principle that works with photographing celebrities- in that they don't own the copyright on your photo of them.
- gburt 15y ago
  This is not a solution. For a short discussion on this idea: http://photo.net/large-format-photography-forum/005ltZ http://photo.net/large-format-photography-forum/005ltZ
  - cdvonstinkpot 15y ago
    Thanks for pointing that out. I wasn't aware of that.

63 points by steve8918 15y ago

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?"

gaius 15y ago
But Pinterest doesn't link to it - it retrieves a copy and makes it its own content.
- pbhjpbhj 15y ago
  >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. This is of course not legal advice.
rmc 15y ago
Unfortunatly it's up to a judge to decide if that's the correct interpretation which partially depends on what the lawyers convice them of.
- mattblalock 15y ago
  Everything fun in life boils down to that, eh?

nextparadigms 15y ago

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?

gaius 15y ago
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: http://www.pdnonline.com/pdn/news/Morel-Wins-Pre-Trial-1388.shtml http://www.pdnonline.com/pdn/news/Morel-Wins-Pre-Trial-1388....
- Dylan16807 15y ago
  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.
petegrif 15y ago
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.
OneBytePerGreen 15y ago
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.

noonespecial 15y ago

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.

rprasad 15y ago
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.
- noonespecial 15y ago
  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).
  - CamperBob 15y ago
    Not all lawyers are good lawyers. Not all clients are good clients. Far more important, not all judges are good judges, and hardly any jurors are good jurors. Hence the (correct) advice to "Be afraid."
  - wladimir 15y ago
    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.

ilamont 15y ago

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?

pyre 15y ago
> 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? So long as attribution is retained; otherwise, it's just another random photo.
- nirvdrum 15y ago
  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.
nagrom 15y ago
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?

pron 15y ago

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?

petegrif 15y ago
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.
bilbo0s 15y ago
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?
- pbhjpbhj 15y ago
  >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.

vasco 15y ago

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"

pron 15y ago
That, as always, would be up to the court.
petegrif 15y ago
I am pretty sure that foot massage clause is in Apple's ToU. Everything else is.
joelhaasnoot 15y ago
It all comes down to in most cases to what the court deems "reasonable expectations", which that would likely not fall under.
rmc 15y ago
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.
biot 15y ago
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.

rmc 15y ago

We need some copyright reform. There are many many things that are illegal that shouldn't be.

jrockway 15y ago

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.

arkitaip 15y ago
The key word is interpretation. Why would she risk facing the justice system simply because someone else's interpretation differs from hers?
- jrockway 15y ago
  Why risk doing anything? If I go outside, I could get hit in the head by a meteor, killing me instantly. But I go outside anyway, because I like to.
petegrif 15y ago
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.
- bgilroy26 15y ago
  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.

tomp 15y ago

Solution: use a fake email address.

Jach 15y ago
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.
rprasad 15y ago
Counter: subpoeana Pinterest for the IP address(es) used to access its site using that email address, then subpoena the ISPs.
- pbhjpbhj 15y ago
  Tor would do it. Also not copying images locally (so no uploads) would appear to remove any personal liability despite what Pinterest may wish to claim.
- burgerbrain 15y ago
  If they want to waste that much money to learn that I only use public wifi, more power to them.
  - CamperBob 15y ago
    Exactly. I wonder how many threatening letters the average Starbucks location receives per month?

Jach 15y ago

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.

liber8 15y ago
It is a horrible summary of Fair Use. 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.

abruzzi 15y ago

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?

antiterra 15y ago
Why are you so sure? Did you not read this: 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.

gioele 15y ago

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 kind article is a nice addition to "No copyright intended": https://news.ycombinator.com/item?id=3340224 https://news.ycombinator.com/item?id=3340224

gioele 15y ago

> 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. > > She concludes: > > "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."

burgerbrain 15y ago
Yeah, that section bothered me to. To be blunt, I have to wonder if this 'lawyer/photographer' is not a 'concern troll' (http://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_troll http://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_tr...)

milkshakes 15y ago

from the article: 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?

alan_cx 15y ago

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.

wpietri 15y ago
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.

feralchimp 15y ago

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.

tlogan 15y ago

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?

yurisagalov 15y ago

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. http://ddkportraits.com/2012/02/my-date-with-ben-silbermann-following-up-and-drying-my-tears/ http://ddkportraits.com/2012/02/my-date-with-ben-silbermann-...

cdvonstinkpot 15y ago

Potential solution: Take a photo of a photo and post that, then you own the posted image. It's a principle that works with photographing celebrities- in that they don't own the copyright on your photo of them.

gburt 15y ago
This is not a solution. For a short discussion on this idea: http://photo.net/large-format-photography-forum/005ltZ http://photo.net/large-format-photography-forum/005ltZ
- cdvonstinkpot 15y ago
  Thanks for pointing that out. I wasn't aware of that.