Is Pinterest Violating Copyright Law?

This is a guest post by Dave Owens. You can click here for more information on submitting guest posts. Pinterest, social media, social media website, pinterest fair use, pinterest intellectual property

The Internet has been an amazing tool for information, creativity, and innovation. But let’s face it, the Internet is also phenomenally good at helping most of us invent new ways to waste time.

Pinterest is the latest popular social media phenomenon which aims to shepherd us along that time-wasting journey.

Each week, thousands more people — my wife among them — spend hours at a time “pinning” photos for things like recipes, crafts, and cute animals.

The idea of users sharing creative works they did not create is nothing new. Many social networking websites, including Facebook, Twitter, YouTube, and Pinterest, allow users to feature works of intellectual property that he or she likes.

A recent San Francisco Chronicle article raised the question of whether “pinning photos” was a fair use under federal copyright law.

Note: The article also raised important questions about Pinterest’s End User License Agreement (“EULA”), but since I’ve already drafted an article on EULA’s, I figured I would only address the fair use issues.

In order to understand whether Pinterest or its users are violating copyright law by “pinning photos,” we need to first take a look at how Pinterest works.

How Pinterest Works

If you are unfamiliar with Pinterest, here’s how it works:

After signing up for an account, a user can select (or “pin”) photos from the Internet and then a thumbnail of that image will appear on their page for others to see. A user can also “re-pin” other users’ photos.

Fair Use Standard

Generally, when you pin an image, you do not get permission from the copyright owner of that image.

Under federal copyright law, permission is required before you can use a copyright owner’s intellectual property unless such a use is considered a “fair use.”

So what is a “fair use” of a photo?

Under the Copyright Act, judges consider the following factors to determine whether a use was a fair use:

  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 which the potential market for or value of the copyrighted work.

A good lawyer could make exhaustive arguments about whether or not a user “pinning” a photo is a fair use. But a key argument for why it’s a fair use for the user is that he or she is likely not using the website for a commercial purpose.

Furthermore, pursuant to the Digital Millennium Copyright Act, the copyright owner would send Pinterest a Takedown Notice and the image would be removed (more on this below).

In most situations, the copyright owner would only consider a lawsuit against the user if the user filed a Counter Notice under the DMCA.

The more interesting question is how a website like Pinterest is allowed to exist under federal copyright law since it does have a commercial purpose.

For that answer, read on…

“Framing” Allows Pinterest Users to Link to Other Photos

Framing is when an image or word is coded to take you to another webpage upon being clicked. The 9th Circuit has stated that “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner links to or frames the electronic information.”

If you pin an image from the Internet, Pinterest doesn’t actually maintain the image. Rather it provides a link to the original photo.

Thumbnails of Photos Are a Fair Use

A thumbnail is a reduced-size version of another photo. When you view another person’s Pinterest account you will see thumbnails of “pinned” images. The 9th Circuit has ruled that thumbnails are a fair use.

The reasoning is that even if the entire image is used (which would generally favor the copyright owner for the amount and substantiality factor), a user cannot identify an image if cropping is required.

Digital Millennium Copyright Act

In the event that a user uploads a photo and the Pinterest server actually maintains the allegedly infringing photo, Pinterest could still be protected under the Safe Harbor Provisions of the Digital Millennium Copyright Act (DMCA).

The DMCA protects Internet service providers from the liabilities of its users if they comply with the statutory requirements, which include:

  • Not having actual knowledge of the infringing activity, or not being aware of facts or circumstances from which infringing activity is apparent, and upon obtaining such knowledge or awareness acting expeditiously to remove the material;
  • Having a designated agent to receive notifications of claimed infringement; and
  • Adopting and reasonably implementing a policy that terminates repeat infringers.

All the major social networking websites, including Pinterest, should have a system in place to handle takedown notices.

For these reasons, a website like Pinterest can survive without incurring unlimited liability for copyright infringement.

 

Dave Owens can be reached at dave.owens.legal@gmail.com.

 Photo credit: Cookerlypr.com

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