While Facebook struggles with f-commerce, a younger upstart, Pinterest, may be the next big thing in social commerce. The service, which is an "online pinboard" that allows users to "share things you love", is surging in popularity.

But there may be a downside to increased popularity, as some are questioning whether the service is promoting copyright infringement on a massive scale.

At issue: the process of 'pinning', which typically involves Pinterest users posting photos that they didn't take and don't own the rights to.

The Business Insider spoke to media law attorney Itai Maytal, who says this leaves Pinterest in questionable territory. According to Maytal, Pinterest doesn't have a strong Fair Use defense, and while the Digital Millennium Copyright Act (DMCA) has a safe-harbor provision for internet service providers so long as they remove copyrighted material when notified, Maytal says "they're not doing that."

In Maytal's estimation, "the big problem is that [Pinterest] grabs entire copyrighted works to re-post. This could be hard to overcome, especially as Pinterest starts growing and becomes more of a destination for a greater audience" although he notes that nobody will know how Pinterest's defenses stack up until the company faces a legal challenge.

While Pinterest may not face the kind of legal opposition services like Napster and YouTube did, intellectual property rights don't matter less because we're dealing with photographs instead of, say, hit songs or movies. Just look at how angry individuals get when a major news organization swipes and uses a photograph without permission.

That said, given the fact that services like YouTube have been able to defend themselves in court using the DMCA, it's hard not to think that Pinterest would be able to defend itself in a similar fashion.

The big question, however, is whether that's the assumption the company should be making. Although Pinterest's terms of use ask users not to upload photos they don't have the rights to, the company must know that most users are violating this. Instead of hiding behind the DMCA, companies like Pinterest should recognize that the "we're protected by the DMCA" defense may not last for very long and that it's in their interest to find ways to ensure that they're not promoting massive infringment.

Patricio Robles

Published 24 February, 2012 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

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Comments (3)


Mitch Labuda

"At issue: the process of 'pinning', which typically involves Pinterest users posting photos that they didn't take and don't own the rights to."

Add on top of that, statement, the TOS that Pinterest has;

"Member Content
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. "

So, if a member does not own or have permission to upload content and the TOS, allows the site to take Member Content, which includes links, the site is free to do a lot with the content, which is in addition to the potential copyright infringement.

over 6 years ago

Jonathan Wolf

Jonathan Wolf, Director of Product Strategy, EMEA at Bazaarvoice

Given that Pinterest pins tend to link back to the source site itself, and the source site is often an ecommerce site, why do we think any of these source sites will have any interest in slowing Pinterest down? With the other examples you cite, the source is losing out due to the infringement, while in this case Pinterest is essentially a massive affiliate site for them. Seems like a win for the ecommerce companies in question.

over 6 years ago

Nicole Gläser Eriksson

Nicole Gläser Eriksson, Nordic Sales Executive at Web Guide Partner

This feels like a very interesting question indeed. Because the purpose with Pinterest is actually to copy pictures from around the web. Without asking for permission before. Sure, for a lot of companies and people it is great that their content is spread that way, but that´s surely not true for everyone. Does anyone have further links to discussions around that issue?

over 6 years ago

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