I’m tired of social networks. It’s impossible to keep up with them, and I feel no compunction to stay abreast of the latest fad. But in the case of Pinterest, I noticed it and ignored it—at least until I realized it represents wholesale theft of intellectual property. Worse still, it’s my intellectual property that helped me realize this truth. Here’s the proof.
On August 3, 2009, I posted this photo:
Then on January 4, 2011, I posted it again while announcing that the photo (along with others) had been licensed in July 2010 to the Lyonia Environmental Center in Florida. That post included these photos showing how the image was used on interpretive signs:
So imagine my surprise when I discovered Pinterest had copied the photo in its entirety for display on their site (see this pin), clearly stolen in violation of my rights and the existing licensee. That copyright infringement occurred in September 2012.
Now let’s be clear about this: Pinterest’s Terms of Service state its users “therefore agree not to post any User Content that violates any law or infringes the rights of any third party.” But in order to make that work, they need to enforce those terms. Which they don’t. Obviously.
More insulting and even more criminal is this, also from their ToS:
You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products. Nothing in these Terms shall restrict other legal rights Pinterest may have to User Content, for example under other licenses.
Thus by promoting and participating in copyright infringement, Pinterest lays claim to the intellectual property of others such that they can make money with it if they so choose, all of which is based on assuming its users have the rights they are transferring to Pinterest when they post content. That is, when they post someone else’s content, which represents the vast majority of the images shown on the site.
So by stealing my work—work already licensed to a third party, by the way—Pinterest claims for itself whatever rights it needs to monetize my property whilst infringing my copyright and violating my ownership rights and the license rights of the Lyonia Environmental Center.
But there’s more. Also from their ToS:
Following termination or deactivation of your account, or if you remove any User Content from Pinterest, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, Pinterest and its users may retain and continue to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through Pinterest.
To wit, Pinterest not only copies third-party content to their servers without consent or license, but they lay claim to perpetual ownership following that process. Even if the user deletes the original infringing image, Pinterest will keep a copy and do with it as they please.
All the while, they wash their hands of responsibility by laying the law on their users:
Pinterest respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree not to post any User Content that violates any law or infringes the rights of any third party.
To add insult to injury, they then make the users scapegoats:
PINTEREST SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Pinterest takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Products.
This means Pinterest unlawfully copies intellectual property from others, claims full rights to it so they can make money on it if they choose, refuses to delete it even when the user removes it, and all the while they use their users as human shields against any application of the law. How repulsive! And illegal!
After hours of research last night, I know many will immediately come to the company’s defense by claiming they fall under the Fair Use Doctrine of copyright. To that I say this: Bullshit!
Fair Use has strict requirements which Pinterest fails to meet.
(1) They have already claimed commercial rights over the images posted. Likewise, they do not enforce non-commercial use on their users since they do not enforce their Terms of Service on their users. Therefore they are already competing with the intellectual property owner.
In addition, copying the photos and displaying them in their original size with no critical, parodic or other meaningful and substantive purpose means their use is not transformative. A thumbnail linking back to the original would meet that definition, but they do not create thumbnails and photos lose their original source information the moment someone else re-pins it. Similarly, Pinterest includes code to embed the image elsewhere on the internet, further diluting the original owner’s rights and control, and certainly further removing the work from its original source.
(2) The copyright work, at least in the case of photos, is creative rather than factual. In addition—noted in this case specifically—the work is not only copyrighted, it’s already licensed by me to a third party, and that third party has already used the work accordingly. Both their work and mine are protected by copyright, yet Pinterest has blatantly violated both.
(3) Since Pinterest copies images and displays them in their entirety and in a size that negates the need to “click through” to the original source, they cannot claim the same fair use right that Google and Yahoo and Bing have when displaying thumbnails in image searches. Those small representations make clicking through necessary to see the original work. Pinterest’s use does not.
(4) The effect of their use clearly dilutes the copyright owner’s original work. Additionally in this case, it dilutes the use of the licensee who has legal rights to use the photo. More disconcerting, those looking for such an image could easily be directed to Pinterest rather than to my site where the original exists (this is true because Pinterest gets more traffic and a popular photo on their platform would have higher visibility).
Obviously Pinterest fails the “Fair Use Doctrine” test. No matter how one construes their use of images, they steal intellectual property and infringe on copyrights with no legal protection from creators like me. (That is to say, they’re protected from their users by the ToS et al. on their site, but those documents are meaningless in my case since I have no account and have not agreed to those terms, not to mention I didn’t post my content to their service.)
Pinterest is the new Napster, the latest internet platform to promote and participate in and profit from wholesale copyright infringement. Without massive changes, including vast enforcement of its own Terms of Service, Pinterest is a digital criminal.
Yes, Pinterest equals copyright infringement. And apparently, despite what some say, crime pays, at least for them. At least for now.
But the lawsuits are coming, of that I’m sure. If they don’t quickly take action on my DMCA claim for the photo in this post, I’ll be the first to take them to court.
Hear that, Pinterest? Consider this your only notice.