

A Lawyer/Photographer Just Deleted All Her Pinterest Boards Out Of Fear - steve8918
http://www.sfgate.com/cgi-bin/article.cgi?f=%2Fg%2Fa%2F2012%2F02%2F29%2Fbusinessinsiderpinterest-copyright-.DTL

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noonespecial
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
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
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).

~~~
wladimir
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.

------
jrockway
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.

~~~
petegrif
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
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.

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gioele
> 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
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_tr...](http://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_troll))

------
Jach
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
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.

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alan_cx
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
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.

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

------
pron
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?

~~~
bilbo0s
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
> _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.

~~~
bruceboughton
Surely the reason the browser cache argument fell down is it is a temporary
cache to improve performance. How is a server side cache any different?

~~~
pbhjpbhj
Browser cache is like keeping the shopping in your trolley as you go around
the supermarket. "Server-side cache" is stealing the stuff from the
Supermarket to sell in your own shop. If you decide to retain something from
your browser cache, without acquiring a license, then you just shoplifted it.

[Before anyone says it I'm absolutely not equating copyright infringement and
theft].

------
tlogan
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?

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nextparadigms
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
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....](http://www.pdnonline.com/pdn/news/Morel-Wins-Pre-
Trial-1388.shtml)

~~~
Dylan16807
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.

------
mattblalock
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
But Pinterest doesn't link to it - it retrieves a copy and makes it its own
content.

~~~
pbhjpbhj
> _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.

------
gioele
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>

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abruzzi
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
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._

------
ilamont
_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?

~~~
nagrom
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?

~~~
Alex3917
"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."

The fair use rules are completely different for movies, so it's not really
analogous.

~~~
nagrom
It's re-publishing the entire creative work by a for-profit corporation and
its users. If it's not possible to infringe copyright by re-publishing the
entire work in this way, then copyright means nothing.

~~~
Dylan16807
On the one hand, yes in technical terms it is republishing. On the other hand,
they could deep-link the photo.

The _intent_ is to cache the photo. Pinterest _could_ disable caching and
still work.

But a standard hollywood movie is not already available online to be linked
to. If you upload it you become primary hosting, not a caching layer.

------
vasco
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"

~~~
rmc
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.

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

------
cdvonstinkpot
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
This is not a solution. For a short discussion on this idea:
<http://photo.net/large-format-photography-forum/005ltZ>

~~~
cdvonstinkpot
Thanks for pointing that out. I wasn't aware of that.

------
milkshakes
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?

------
feralchimp
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.

------
tomp
Solution: use a fake email address.

~~~
rprasad
Counter: subpoeana Pinterest for the IP address(es) used to access its site
using that email address, then subpoena the ISPs.

~~~
burgerbrain
If they want to waste that much money to learn that I only use public wifi,
more power to them.

~~~
CamperBob
Exactly. I wonder how many threatening letters the average Starbucks location
receives per month?

