|August 14, 2014|
Pinterest is a new site in the social media craze that focuses on communication through images. Essentially, users pin images they find online and share them with fellow members. These images are stored on Pinterest servers in 500-pixel copy. When users view an image they like on any site online or offline, they can click on it to link back to the original site.
Here lies the problem - unlike Google, they don't merely provide unframed images, but neither are they actually seeking content. Users are responsible for content and are urged under the user agreement to only post that which they have rights to, but this rarely happens.
However, Pinterest does not violate the exclusive rights to copyright owners through its picture-based social media site for three reasons. First, they fall within 17 U.S.C. §512(c)’s “safe harbor” requirements. Second, they do not infringe copyrights by contributory or vicarious infringement. Third, under the “fair use” exception to copyright, news reporting and criticism by Pinterest’s users is allowed.
First, our discussion of Pinterest and potential copyright should turn on the broadest of safe harbors available and the most applicable; 17 U.S.C. §512(c) (2012) Internet Service Provider Privilege. Pinterest at its core is a service provider because it allows users to interact, while having no real control over content that the users post. Pinterest’s only input is to remove infringing content or accounts (discussed later). Therefore, it can take shelter under the law in §512(c). §512(c) is composed of several requirements that allow an otherwise infringing provider to have “safe harbor.” These requirements are: (1) the provider must have knowledge or awareness of specific infringing activity; (2) the provider must act expeditiously to remove or disable access to the material; and (3) the provider must receive no financial benefit directly from infringing activity to which the provider has the “right and ability to control.”
Addressing (1), knowledge of specific infringing activity is required. Therefore, general knowledge is not enough, but “willful blindness” to infringing activity is not allowed either. In UMG Recordings, Inc. V. Shelter Capital Partners LLC., an illustrative case on the specificity required, the court found that copyright holders know precisely what materials they own and are better able to efficiently identify infringing copies than service providers. 718 F.3d 1006, 1022 (9th Cir. 2013). Therefore, copyright owners must indicate copyright material with as much specificity as they are able in order for liability to occur on the service provider’s account. However, “willful blindness” like that in the Viacom International, Inc. V. YouTube, Inc. will not allow a provider to escape liability either. 676 F.3d 19, 34 (2nd Cir. 2012). There the court found that willful blindness is tantamount to knowledge. Viacom International, Inc 676 F.3d at 34.
Pinterest is a collection of pictures and therefore it is easy for a copyright holder to inform them of the specific image that is posted illegally. With the accounts that tag to each post on Pinterest, an infringed upon party can even identify the infringing account. This happens quite frequently. In fact, when pictures are removed, Pinterest sends the user a takedown notification that the copyright holder has asked that the infringing image be removed. So we know Pinterest can be notified of specific infringing activity. As to “willful blindness” to copyrights, Pinterest does not fit within this category either. They are completely user driven and as such do not promote pins, but let users drive pin boards. However, unlike YouTube Inc., Pinterest does not turn a blind eye to copyright infringement and immediately filters out infringing pins. This is clear from their takedown form, which allows the infringed party to not only remove the infringing pin, but all other pins that contain the work. Terms of Service, Pinterest (Mar. 30, 2014), http://www.pinterest.com/terms/.
Looking at Pinterest’s takedown form clearly addresses (2) because part of expedited removal is having an automated method of removal. Looking at Pinterest’s DMCA takedown form shows that they move at an expedited pace. They allow for multiple pins to be taken down with one request, which is digitally accomplished. This aids in the speed and volume in which they can handle requests.
Finally, the safe harbor rule requires that (3) service providers gain no financial benefit directly from the infringing activities from which they have the “right and ability to control.” There are two parts to the final piece needed in this exception: (A) no profit and (B) control. As for profit, Pinterest has yet to make any money from their site. Dave Wieneke, How Does Pinterest Make Money?, Econsultancy (Mar. 15, 2012, 10:31 PM), econsultancy.com/blog/9292-how-does-pinterest-make-money. However, Pinterest CEO Ben Silbermann says the company does have plans to have promoted pins come out sometime in 2014. Shannon Scribner, Pinterest to Experiment with Paid Advertising through Promoted Pins, Barkley (Mar. 30, 2014), blog.barkleyus.com/2013/09/27/pinterest-to-experiment-with-paid-advertising-through-promoted-pins/. Whether or not Pinterest makes money, a bigger reason Pinterest fits the last requirement of the exception is because they do not have the “right and ability to control” the content being posted. While Pinterest can take down content, it is a social network service provider who is subject to individuals’ pins. Further, those pinning are responsible for their content and what is pinned according to Pinterest’s Terms of Service. Pinterest, Supra.
Second, Pinterest does not violate copyright law because they do not directly or contributory infringe copyrights. Pinterest does not directly infringe because they do not create any works or materials, they are merely the server to which users post materials. In short, they are the telephone pole where individuals tack pictures - the pole does not create the media merely because something is tacked to it.
However, some may argue that Pinterest infringes by contributory infringement of copyrights because they cause others to violate copyrights. Contributor infringement occurs where a company distributes a device with the object of promoting its use to infringe copyright, which is shown by a clear expression or affirmative steps taken to foster infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936-37 (2005). However, a device “capable of commercially significant non-infringing uses” does not qualify under vicarious infringement. Sony Corp. v. Universal City Studios, 464 U.S. 417, 442 (1983).
Pinterest has not, by clear expression or affirmative steps, fostered infringement. In fact, it seeks to provide a space were users can post their material or pictures. As mentioned above, Pinterest clearly tries to prevent infringing activity and has an automated form system to accomplish this fact. Pinterest, Supra. Further, Pinterest clearly fits within the Sony holding as a device capable of commercially significant non-infringing uses because lawful copyright holders and companies use their service/device. Scribner, Supra. In fact, with the coming paid placement pins, Pinterest will be working directly with copyright holders to promote their work. Id.
Third, Pinterest fits within the Fair Use exception defined in 17 U.S.C. §107 (2006) because it concerns mostly criticism, comment, and reporting. There are four factors the court considers when evaluating Fair Use: (1) the purpose and nature of the use—commercial or nonprofit; (2) 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 on the potential market for the copyrighted work.
Factor (1) focuses on the use of the commercial work and for what purpose it is being used. While this factor weighs what the use is for, profit or non-profit, a finding for profit does not exclude the use as Fair Use. Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282, 291-92 (S.D.N.Y. 2013). In Authors, the court found that while Google’s use was for a commercial purpose, its book snippet service provided a great benefit to providing research and library services. 954 F. Supp. 2d at 292. Further, its use was not direct commercialization because they didn’t sell snippets and run ads on the pages containing the snippets. Id. So, even while Google’s motivation was for profit, because it served several important educational purposes, factor (1) favored Google’s use. Id.
Similarly to Google in Authors, Pinterest is a commercial company and also provides services for the benefit of the public using copyrighted material. Just like Google, Pinterest does not run ads next to pins and does not sell pins. As mentioned before, Pinterest may sell promoted pins, but not others’ pins (ex. potentially copyrighted material). Also, just like Google, Pinterest provides great benefit to the world at large through its “library” of pictures. While many use Pinterest for projects, design boards, knowledge of physical locations, and new products, police departments are starting to use it to help individuals recover stolen property. In South Jersey, police use the site to pin pictures of recovered property in order that citizens be able to see and claim their stolen property. South Jersey Police Department’s Pinterest Page will Allow Community to Browse and Claim ‘Recovered Property’, CBS Philly (March 6, 2014), http://philadelphia.cbslocal.com/2014/03/06/south-jersey-police-departments-pinterest-page-will-allow-community-to-browse-and-claim-recovered-property/. Pinterest provides a place for reporting and public comment on images where without it, property held by police would go to auction for failure to find the property’s owner. Therefore, under the Authors standard, factor (1) favors Pinterest’s commercial, but nonetheless important reporting, teaching, and commenting purpose as Fair Use.
It is important to note here that an argument can be made, in the context of social media, for analyzing the social media account and not the service as a whole. Under this analysis, the Jersey Police would have a valid use, while a blogger for profit may not. I have chosen to analyze the service as a whole because, not unlike Google.com, Pinterest cannot be taken as a single user or account because it is more a collective that makes a whole than a individual is the service’s whole in and of herself.
Factor (2) focuses on the nature of the copyrighted work - the more creative the stronger the protection. Here, because Pinterest is a picture social media provider, the work contained on its site is always creative. Pictures by their nature are creative. While this analysis tends to focus on unpublished vs. published work, in Pinterest’s case, most work is already published when it is pinned (being as it was pinned from a website). Therefore, there is not a clear distinction in Pinterest’s case. However, while pictures are creative, all work that is copyrighted is too. This factor seems to be glazed over by most cases and is more of a formality than a true major factor. Its purpose really is to protect those works, which are being used, but are not already published and therefore suffer more as a result of the Fair Use (leaking stories and data, etc.). Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564, (1985). Under this logic, factor (2) favors Fair Use because nothing in this case points to particularly creative work that should be protected above and beyond the normal protections.
Factor (3) asks how much of the work is used. In cases with images, the Second Circuit Court has found that images used in reduced size and scattered among many other images and text (Pinterest by definition) where used for a valid purpose, such as history, qualifies as Fair Use of those images. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006).
Here, factor (3) clearly weighs in favor of Pinterest under Bill Graham Archives analysis because like the defendant in that case, Pinterest puts images scattered among many with text and comments for the valid purpose of reporting, comment, teaching, and criticism. As mentioned above, Pinterest is used for everything from stolen property recovery, to home improvement lessons.
Factor (4) focuses on the effect a use has on the copyrighted material’s value and the market for it. This factor is most likely the most important factor of the four and the one the courts most closely inspect. Harper & Row Publishers, Inc, 471 U.S. at 566. The Supreme Court notes in Harper that a copyright holder can negate fair use by showing only that if use became widespread, it would adversely affect not only the original work, but also the market for derivatives of it. 471 U.S. at 568.
While studies on the effects of Pinterest have not been fully conducted, the stats are clear. Pinterest refers 20% of social referrals to commerce cites. By the Numbers: 59 Amazing Pinterest Stats, Digital Marketing Ramblings, (March 2014), http://expandedramblings.com/index.php/pinterest-stats/#.U0DU8cecOfx. Asserting that Pinterest takes away from or adversely affects an original work is clearly erroneous. Consider that Pinterest referrals come from the pins themselves and therefore are referring to the original site and the media’s true location. In effect, giving more value to the original and possible derivatives. Further, many copyright holders, including Nordstrom, are embracing referrals and increased traffic and have taken to Pinterest in an effort to promote their work. Id.
The most apt analogy here is the one to physical print, where authors quote each other and use allusion to other works. It is not that they are stealing the copyrighted material or even hurting it. By using these literary devices, authors give credence and authority to other works, which in turn results in high readership of the quoted material. Further, like literary references, which contain only a snippet of the work, to truly see the site or place the work (picture) belongs, you would have to click through to the site. This is because Pinterest only keeps a 500-pixel thumbnail to show. Therefore, under a similar analysis to Harper and literary devices, factor (4) favors Pinterest’s Fair Use of pins in promoting others’ works through reporting, comment, teaching, and criticism.
In summary, Pinterest does not violate copyright through the maintenance of their service for the following three reasons.
First, they meet 17 U.S.C. §512(c)’s “safe harbor” requirements. (1) Pinterest doesn’t have knowledge of specific infringing activity; (2) they act expediently when notified of an infringing pin and removes it from the network completely; and (3) Pinterest gains no financial benefit from its services in conjunction with not having the right and ability to direct pins. Therefore Pinterest fits within the service provider exception and is immune from liability for copyright infringement liability.
Second, Pinterest is not directly violating copyrights because their product does not create any works or new materials. Also, Pinterest does not commit contributory infringement because they do not foster infringement and they have a commercially significant non-infringing use for their service.
Third, Pinterest meets the Fair Use exception defined in 17 U.S.C. §107 because all four factors analyzed under the law favor Pinterest’s Fair Use: (1) Pinterest’s commercial, but nonetheless important reporting, teaching, and commenting purpose favors Fair Use; (2) nothing in this case points to particularly creative work that should be protected above and beyond the normal protections; (3) Pinterest’s use is for the valid purpose of reporting, comment, teaching, and criticism; and (4) just like a literary allusion or quote, it drives interest to the original work and medium the copyright material was found in.
Therefore Pinterest most likely does not violate the exclusive rights to copyright owners through its picture-based social media site.