Pinterest Part 2: What to Pin? Suggestions on the Risks of Pinning

February 20, 2012

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Earlier today I wrote about Pinterest, the online virtual bulletin board phenomenon that has been gathering momentum over the last several months.  Users “pin” images to blank boards on Pinterest that the user designates.  I addressed Pinterest’s approach to allocating risk and liability for pinning activity that might violate third party rights.  Recall that it is the user and not Pinterest that is responsible for assuring all permissions have been obtained to content that is displayed on Pinterest.  While Pinterest describes itself as a place “you can share all of the beautiful things you find on the web,” perhaps we should tack on at the end the following: “so long as you have confirmed can be shared without violating any third party web site’s terms of use, or a third party’s copyright or other intellectual property rights.”  And therein is the rub.

I challenge pinners to try this exercise.  Pick your favorite website.  Read the terms of use.  Consider whether the images that you are using are protectable.  And then evaluate whether to pin.  Some sites impose outright prohibitions on linking to their sites, in many cases in outright contradiction to the specific linking functionality that the sites now provide. So what’s a pinner to do? Many will just continue to freely pin, without regard to whether they have the right to do so.  As more and more attention is focused, though, on the content on Pinterest, it makes sense to consider what appropriate pinning practices might look like if the content owners’ rights were to be respected and the web sites’ terms of use are to be observed.  After all, Pinterest is out of its infancy now and is emerging as a powerful online presence.

Here are few thoughts for Pinterest users:

  • When quoting from source sites for pins, quote “teaser” amounts of text from these source sites.  The idea is to quote enough to explain the gist of what is on the sites without providing a substitute for visiting the site itself.  Sites will only support pins if the pins drive traffic to their sites. And if sites don’t support pinning, it won’t take long for those sites to devise terms of use that restrict pinning (most already do) and enforcement claims may follow.
  • Support Pinterest in expanding the use of Pinterest buttons on sites.  It is hard for a website provider to complain about pins if they have enabled pinning themselves from their sites.
  • Focus on pinning from sites that have Pinterest buttons, and on re-pinning content that was pinned initially to Pinterest by the website content source itself.  I know, I know. This seems to take a lot of the fun out of the process of discovery.  But that’s why we need to support the proliferation of the buttons themselves.  Over time this will begin to fix itself, as more sites see the value of allowing pinned content.
  • Large aggregations of content on pinboards are likely to be targets of concern.  Many pinboards are works of art in their own right.  Note that if a notice and take-down process is initiated by a content owner, Pinterest will have to respond, and the tremendous amount of time and effort invested by you, the user, could be lost over night.
  • Avoid pinning professional photographers’ works without getting explicit permission (many will respond to e-mails) or confirming yourself that the photos come with licenses that provide rights to re-link and display the images on third party sites.
  • When in doubt, ask for permission.

Pinterest’s Decision to Post Image Blocking Code

Monday morning Ben Silbermann, the CEO of Pinterest, announced that Pinterest had posted a code release that enables web sites to block the upload of images to Pinterest.  While this doesn’t change the risk to the user, it might be beneficial to Pinterest. At a minimum, it shows that Pinterest is taking proactive steps to empower sites to control how their content is used with Pinterest.  By placing control in the hands of the website owner, the risks of claims are mitigated for the very reasons I noted in Part 1 of this series.  Content owners want to have some control over how  monetization of their content occurs, and the ability to block pinning of their content places some of that control in the hands of the website owner.  I am not sure that taking this step necessarily will reduce the strength of claims that the use of pins infringes copyright or breaches terms of use if website owners do not block pinning activity.  After all, websites have no duty to block, but users do have obligations to comply with the website’s terms of use.  Nonetheless, taking these kinds of steps is helpful in reducing the likelihood that Pinterest, as opposed to the user, will be held responsible for the infringing activity.   While I love the terrific collections of content on some of these boards, it may be time to do some scrubbing of the pins. Having tried this exercise myself, I don’t recommend doing this without some expert assistance. Leave it to say that the issues are more involved than they appear at first blush.

A Note about Men and Pinterest

My men friends and colleagues have had a little more trouble grasping what’s so great about Pinterest.  The men that pop up on my Pinterest radar seem to have more difficulty understanding the draw of the site. I explained to one of my colleagues recently that he had to think of Pinterest as a blend of the ultimate shopping experience with scrapbooking.  He looked at me with horror (followed by a good laugh), and we both understood immediately why the demographic in the United States is mainly women.  But my own feeling is that this will change with time.

Linking useful content and information is not just for women.  I have experimented with linking my blog to pinboards, and I have noticed more women are posting useful information as well.  The pinboards of teachers on Pinterest is a great example of the power of sharing links to useful resources and information.  Men who are already parts of social networks are posting an enormous number of links to varied and interesting content.  For men to become hooked, Pinterest may need to provide some training wheels for men on the site that allow them to identify and build pinboards of their liking more easily.  Once the “pin” button is as pervasive as the Facebook like button or LinkedIn buttons, and some automation is built into the pinning process, I can envision much broader supplementation of existing boards with links as well.

Happy (safe) pinning!

Disclaimer: This is a personal blog. The views on this blog are my own and not that of my employer, Orrick Herrington & Sutcliffe, or its clients. Nothing on this blog is provided for, nor should it be relied upon as, legal advice. This blog is for informational purposes only. This site is not intended to substitute for obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction. Your use of this site is not intended to create and does not constitute a lawyer-client relationship. Neither this publication nor the lawyers who authored it are rendering legal or other professional advice or opinions on specific facts or matters.

{ 2 comments… read them below or add one }

Stephanie Sharron February 21, 2012 at 6:12 am

Dale, I agree that the average user is unlikely to be a target of a lawsuit. But they may issue DMCA notices if they feel that their content is being used in a manner that they are not being compensated for. You need to check out some of these boards. They have literally thousands of images posted, many of which are from stock photo houses. I agree that websites should be more interested in driving traffic than suing users. There are also a number of websites that are not happy with pins that essentially make visiting their sites unnecessary (note suggestion about including teasers and not substitute for content). At the end of the day, though, I think content monetization is likely to be the real issue. And if conflicts of interest arise, I believe this is where websites will start to enforce their terms. Moreover, the real issue is content monetization and control over that activity. If they do that, there are thousands of hours invested in some of these boards that could be lost. Pinterest can always fight back in court if they believe that the use is a “fair use,” but litigation is a nasty alternative.

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Dale Dietrich February 21, 2012 at 5:57 am

Ha! Pinterest training wheels. In order for that to work you need to assume that men would ultimately want the ultimate ‘shopping/scrap booking’ experience. Unlikely!

While not attempting to give any legal advice here, it occurs to me that if the average Pinterest user goes on about ‘her’ business without trying to make sense of the bazillion opaque, in-congruent and conflicting online user agreements, she’ll be just fine. So long as these woman are not making substantial sums of money at the expense of any given target site, the probability of anyone pursuing them legally is eansy teensy small. The most likely scenario is that 1 in a million Pinterest users may receive an occasional cease and desist letter. And I think this is exactly the approach real world people take. Hell its the approach I take. I can barely read/stomach the online agreements I help my clients craft let alone read through the TOS of the dozens of sites I traverse in any given day.

How many of us, even us lawyers, actually read the terms of use presented before us each time we install a piece of software or join a new web service. I’d say that’s 1 in a million too. Life’s too short. Most normal web publishers, service creators etc. don’t even understand the legal terms their lawyers provide for them. Most have no intention of enforcing them. Most only want these terms of service to be in place in the rare even when someone is clearly ripping them off – for example when another site scrapes their content and copies it holus bolus to a competing site.The vast, vast, vast majority of online sites and services will never care that someone is ‘pinteresting’ (is that a word :) their content and most will, as you point out, appreciate it.

BOTTOM LINE: Let copyright promote the useful arts. Let copyright serve the balancing needs it is intended for.

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