web.tech.law - Legal Notes - Is Pinterest a den of copyright thieves?

Background

A debate whether Pinterest is flouting copyright laws by allowing its users to post, or "pin", images and videos to the site is raging online. If you haven't heard of Pinterest, it is one of the hottest new social networks that encourages users to share stuff they find on the Web. Pinterest's focus is on images and videos and the service gives users ways to republish images on the site and categorise them in "Boards". I found a great introduction video which explains the site with a series of demonstrations:

The site is enjoying tremendous uptake and once you start using it you can understand why. It enables people to create collections of ideas for their homes, brides use it to source inspiration for their weddings and share them with friends and so on. It is a truly social service but it relies on its users republishing 3rd party content to the site so questions about the copyright implications are understandable. One group of content owners who are particularly perturbed about Pinterest are photographers whose works are being published and shared on the site. Mike Masnick over at Techdirt believes this is not what photographers should concern themselves with and points to Trey Ratcliffe's post (read this post for an expanded discussion about this) about the benefits of having his photographs "pirated" as support for his position that Pinterest's benefits far outweigh any potential harm photographers may suffer by having their works pinned on the site:

Either way, his point is a strong one, and it's really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do... or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works... all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

Exclusive rights

Regardless of the benefits of sharing more openly or even tolerating copyright infringement, content creators are entitled to protect their rights so the question remains what those rights are and whether Pinterest is either directly infringing copyright or is facilitating copyright infringement by its users? I'll explore these questions in the context of South African copyright law which is largely governed by the Copyright Act, No. 98 of 1978.

Images and videos are categorised as "artistic works" and "cinematograph films", respectively. Provided this content is original and reduced to a material form, it is generally protected by copyright. This means that the content's copyright owner has a number of exclusive rights in and to that content ?

Nature of copyright in artistic works.

7. Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) ? Reproducing the work in any manner or form;
(b) ? publishing the work if it was hitherto unpublished;
(c) ? including the work in a cinematograph film or a television broadcast;
(d) ? causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e) ? making an adaptation of the work;
(f) ? doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Nature of copyright in cinematograph films.

8. (1) Copyright in a cinematograph film vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) ? Reproducing the film in any manner or form, including making a still photograph therefrom;
(b) ? causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
(c) ? broadcasting the film;
(d) ? causing the film to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;
(e) ? making an adaptation of the film;
(f) ? doing, in relation to an adaptation of the film, any of the acts specified in relation to the film in paragraphs (a) to (d) inclusive;
(g) ? letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the film.

Barring exceptions to copyright infringement (more about that below) and a license from the content owner granting permission to exercise these rights (more on this below, too), any exercise of these rights would likely be copyright infringement. Section 23(1) deals with this specifically and states the following ?

Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.

Copyright infringement exceptions

At this point the law becomes a little tricky. The Copyright Act recognises a series of exceptions to copyright infringement. This means there are uses of copyright protected content which, but for these exceptions, would be infringing uses. I won't republish the sections of the Act for the sake of some semblance of brevity but below are the principles which come out of the Act (this is not a complete treatment of these exceptions):

• In respect of photographs ?
  • personal or private use does not infringe copyright;
  • using the photographs for the purpose of reviewing or criticising them is similarly not infringing; and
  • "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".
• In respect of videos ?
• "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".

Unlike artistic works, cinematograph films don't carry the same exceptions that permit use for "personal or private use". In the United States there is a broad exception called "fair use". We don't have fair use in our law but we do have "fair dealing". That said, "fair dealing" is pretty much limited to literary and musical works (think print publications and sheet music).

Back to Pinterest

So what does this mean so far? Well, before you even look at Pinterest's terms of use, you know that you can probably copy photos and publish them to Pinterest under the "personal or private use" exception for artistic works but the same doesn't apply to videos. If you had permissive licenses to republish those photos and videos on Pinterest from the content creators that would resolve your dilemma but that would depend very much on where you get the photos and videos from (there is a wealth of content on the Web released under flexible licenses like Creative Commons but this has to be specified - your default is always that the copyright owner reserves all rights and that means you don't have any).

Pinterest's terms of service contain content licensing provisions. These provisions comprise the broad license users grant to Pinterest and licenses Pinterest grants to its users. The purpose of these licenses is to ensure that the site can continue to operate but the challenge is that the licenses are not always in line with the rights users have to use the content on the site. Here are the relevant provisions:

Pinterest Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Pinterest Content solely for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Application, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Cold Brew Labs or its licensors, except for the licenses and rights expressly granted in these Terms.

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. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs? use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party?s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

In many instances it may be legally impossible for users to grant the license Pinterest takes from its users and for Pinterest to re-license that content back to users. Even where a photograph or video is made available under a permissive Creative Commons license, Pinterest's license terms are at odds with those liberal licenses. What this means is that, in the absence of legally competent permissions, using the content on Pinterest could infringe copyright. This would seem to be the case with video content and with Pinterest's use of photographs published to the site which are not licensed for that purpose. Users republishing photographs may be protected by the copyright exception I mentioned above.

Pinterest is aware of these concerns and published a post recently titled "Growing Up" in which the Pinterest team pointed out its efforts to comply with US copyright legislation and the "take down notice" procedure which gives rights holders the ability to have infringing content taken down ?

With all that growth, we?ve gotten more questions from reporters and Pinners. In the past, we?ve been pretty quiet, but we want to get better about answering questions openly with people who are interested in Pinterest. We decided to start today by talking about copyright.

As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.

Pinterest also introduced a mechanism a little like the robots.txt mechanism where copyright owners can incorporate code into their content links to prevent Pinterest from pinning that content. This may or may not be much comfort for copyright owners but I find myself going back to Ratcliffe's, Masnick's and numerous others' points about the benefits of sharing more openly and ignoring many infringing uses (sometimes even encouraging it). It comes down to whether a copyright owner is interested in exploring a more innovative model or prefers more control. Either way, there seems to be grounds for concerns about Pinterest and copyright infringement that don't seem to have easy answers.

Source: http://webtechlaw.com/posts/is-pinterest-a-den-of-copyright-thieves.html

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