Pinterest, in case you have not heard, is the latest social network. It is sort of like Tumbler without the social angst and hipster look. Some have described it as “Facebook for women” (because everyone knows that no woman uses FB). Time magazine tells us that “Men Are from Google+, Women Are from Pinterest“. I even saw it described on Twitter as “World of Warcraft for women”, or even “Reddit for girls”. You get the drift then, Pinterest is strictly for the female audience. Please ignore the fact that having created a Pinterest account puts me in a dubious minority.
The whole point of Pinterest is that people create boards and pin pictures on them. The site allows you to upload your own pictures, but it also offers the possibility of people linking directly to the images they want to share, so a big part of the service is for people to pin stuff they find on the Internet. This has created a powerful meme in the blogosphere and in the twitterverse that Pinterest has copyright problems. You can read about the copyright problems in this Guardian piece, in this article in ReadWrite Web, this Business Insider one about “copyright theft” (ugh), and in similar items all over the place. This has surprised me, as I honestly do not see anything in Pinterest that is completely new when it comes to sharing works online. From Tumblr to Facebook, passing through blogs and Google Image, the Internet is filled with shared images. Where does the law stand in this respect?
First, let’s analyse what Pinterest really does from a technical standpoint. When you upload a picture from your computer, Pinterest stores a copy of it in their cloud servers; this is pretty much standard practice across the industry. As far as I can tell, when you link to a picture Pinterest uploads a thumbnail to their servers, and links to the original. It is therefore mostly a hot-linking service. Take the picture above, which I pinned from the meme site 9gag.com. The actual image is a low-res version taken from their local copy in their servers, which then links to high-res original. Is such copying legal?
Pinterest is a US-based company, and as far as I could tell with a simple traceroute, all of their content seems to be hosted in the United States. They use Akamai‘s content delivery network, but that should have no bearing for jurisdictional purposes. As a US intermediary company, they must comply with DMCA’s take-down notice provisions, which means that they should have some form of procedure in place for taking down copyright infringing content. Pinterest has a Copyright statement and take-down policy, as well as a “Report” button for each image. They have also allowed third parties to block pins if desired through restrictions in their API. Interestingly, Flickr has taken advantage of this capability and has included the possibility for its users to include a “No Pin” option to their pictures (despite what a Venture Beat article stated, this action has nothing to do with copyright).
While the above would appear to clear Pinterest from DMCA concerns, one lawyer specialising in DMCA issues has made some detailed recommendations on how Pinterest could improve their DMCA compliance. She says:
“A few simple changes will make this DMCA lawyer much more comfortable knowing her pins will not suddenly disappear one day when Pinterest is out of business due to paying other lawyers exorbitant amounts of money to defend it against claims of copyright infringement.”
Notice that nowhere in her article she states that Pinterest is involved in copyright infringement, or that their current policy is illegal. She just added her opinion that the current policy could be improved.
Finally, what Pinterest does, namely create thumbnails and hot-link to the original, is perfectly acceptable according to US case-law. This was well established in Perfect 10 v Amazon, where an adult-content website sued Amazon and Google for posting thumbnails and inline pictures of their content. The U.S. Court of Appeals for the Ninth Circuit ruled that linking is not an infringement, but most importantly, it held that thumbnails are highly transformative, and therefore would fall under fair use. The court said:
“Google’s use of thumbnails is highly transformative. [...] Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one,” [...] a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information.”
It seems like as long as Pinterest’s images are considered thumbnails in accordance to the above, they will be on the right side of the law. ETA: Perfect 10 defines a thumbnail as “reduced, lower resolution versions of full-sized images stored on third-party computers.” Can we then let this meme rest please?
A word of advice to news sources and blogs covering the issue; reports of a single lawyer over-reacting when reading Pinterest’s terms and conditions is not news.
