Saturday, March 24, 2012

Pinterest revises TOS and addresses copyright issues: a Primer

The Pinterest team has decided to try and address the very real copyright concerns of visual artists, photographers and others.  

NEW Terms of Service are to be implemented as from 6th April 2012.  

This post highlights the changes and what it means for artists and photographers and other designers who have been at risk of losing income streams due to the previous TOS and member behaviour.

Here's a summary of what it covers
  • What Pinterest has changed
    • Terms of service to be revised as from 6 April 2012
    • The definition of user content - including what the Acceptable Use Policy says
    • a New definition of Intellectual Property Rights 
    • Access to more information about copyright - a smart move on Pinterest's part to provide access to resources which are a resource for those who know nothing or very little about copyright
    • Easier to report copyright infringements - ways in which Pinterest now makes this easier
    • Penalties for repeat offenders (re. copyright infringement - in terms of inability to pin or loss of membership
    • How to file a notice re copyright infringement - this discusses perjury and what the penalties for perjury are
  • New Developments which have been signalled
    • A Pinterest API
    • Private Pin Boards
    • different Pinterest accounts
  • What hasn't changed
    • Size of images

It's probably necessary for me to say that I'm not a lawyer and you should not rely on anything I say as legal advice.  I'm just an experienced internet user who, like you, is trying to make sense of what Pinterest is saying.


What Pinterest has changed



1.  Terms Of Service (TOS) to be REVISED as from 6 April 2012


This is what we all wanted and this is what is going to happen.

I call this a victory for those who took to the Internet to voice their complaints.  It just goes to show that if you want something to change you have to stand up and be counted!

Pinterest explains its position in an email to members which is reproduced in its blog post Updated Pinterest Terms. It highlights in particular that:
  • selling content was never an intention of Pinterest and they have removed the "sell" word from the TOS re what they are allowed to do.  
  • They've updated their acceptable use policy (and it's a bit worrying what the site was being used for given what they now exclude!)
  • simpler tools now allow people to report copyright or trademark infringements (he forgets to mention the policy re repeat offenders who continue to infringe! See below for more details)
  • new phrasing permits the development of new features such as a Pinterest API and Private Pinboards.

Plus simpler language


It's worth noting that the language is now much simpler. Less legalese and more straightforward explanations of the rules of how it works.  There really is no excuse for any member not understanding what it says.

2.  The definition of User Content


What the OLD version says

The bit that most people missed in the old Terms of Service - which has to be one of the worst written documents ever for a new social media site - is as follows
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.
What this basically says - in as much legalese as they could muster - is that in order to post content to pinterest you must
  • EITHER be the sole and exclusive owner of the content (ie it's original and you created it and nobody else has it)
  • OR you have permission or a licence to post the content on Pinterest
This ran entirely contrary to the notion that was more widely promoted by Pinterest that you should NOT post your own content.

Hence all the complaints about contradictory terms of service etc.

However the following statement about avoiding self-promotion from the old version is NOT present in the new version.  Nor could it be if they're putting an emphasis on you owning the image before you pin it!
Avoid Self Promotion | Pinterest is designed to curate and share things you love. If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.

What the NEW version says


Paragraph 1(a) of the Terms of service states
Your content. Pinterest allows you to pin and post content on the Service, including photos, comments, and other materials. Anything that you pin, post, display, or otherwise make available on our Service, including all Intellectual Property Rights (defined below) in such content, is referred to as “User Content.” You retain all of your rights in all of the User Content you post to our Service.
Paragraph 1(b) seems to anticipate future granularity of control and scope to licence what you post.

Paragraph 1(c) says if you remove your content it won't disappear from their servers and stuff which has already been repinned to other people's boards will not be removed.

Paragraph 1(d) has two clauses relating to a Pinterest member's responsibility for your content.  The key sentences relate to the Acceptable Use Policy.  ( have used bold and red to highlight key passages.
Your responsibility for your content:
  • To Pinterest and our community. Pinterest provides a creative and positive place for you to discover and share things you love. To keep it that way, we ask that you review and agree to abide by our Pin Etiquette. We must also insist that you only use our Service in a manner that is consistent with the Pinterest Acceptable Use Policy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. Please — be a good citizen on Pinterest, and always respect our Service and its Users.
  • To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.

NEW (?) What the Acceptable Use Policy states


I think this is entirely new.  Before the site identified what sort of actions were prohibited under a General Prohibitions Notice in the middle of the TOS

Giving the Acceptable Use Policy a page to itself certainly makes it a lot easier to see and read what you cannot do on the site.
You agree not to post User Content that:
  • creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal;
  • may create a risk of any other loss or damage to any person or property;
  • seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
  • violates, or encourages any conduct that violates laws or regulations;
  • contains any information or content ] we deem to be hateful, violent, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
  • contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
  • infringes any third party’s Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary rights;
  • contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
  • is fraudulent, false, misleading, or deceptive.
So basically it says - without being absolutely and completely transparent about it (ie "do not post what you don't own") - that it is NOT acceptable to post property which infringes on a third party's rights in terms of intellectual property law (which covers copyright and trademarks)

Now we know that members did not understand this the first time around.  Judging by comments on the blog post about the updated terms of service there are huge numbers that still don't get it.

BOTTOM LINE - There's a lot of education that still needs to be done by Pinterest.

[Update: 25.3.12: Artists might wish to note that 'adult' images are not welcome on Pinterest and will get caught by the inappropriate content clause.  What's relevant to members is that it's very obvious that some Pinterest include all nude bodies irrespective of whether or not they are art - and hence such images may be reported by those of a more puritanical persuasion.

Of less importance to artists, the acceptable use has also been changed to become more explicit about aspects related to the abuse and injury of the self or others Finish update]

3.  NEW A Definition of Intellectual Property (IP) Rights


The inclusion of this paragraph I assume means they've been advised to have something on the site - as opposed to an external reference which acts as a "catch-all" should they need to point to the member as having the liability for having infringed IP rights
Definition of Intellectual Property Rights. When we refer to “Intellectual Property Rights” in these Terms, we mean all patent rights; copyright rights; moral rights; rights of publicity; trademark, trade dress and service mark rights (and associated goodwill); trade secret rights; and all other intellectual property and proprietary rights as may now exist or hereafter come into existence, and all applications for any of these rights and registrations, renewals and extensions of any of these rights, in each case under the laws of any state, country, territory or other jurisdiction.

4. Pin Etiquette


I can't work out whether the Pin Etiquette is new or changed. It's based on suggestions from members - but might turn out to be still less than precise on the "DO NOT COPY" front. It stated
Credit Your Sources
Pins are the most useful when they have links back to the original source. If you notice that a pin is not sourced correctly, leave a comment so the original pinner can update the source. Finding the original source is always preferable to a secondary source such as Image Search or a blog entry.
However, as you can see there is precisely NOTHING that says:
  • identify copyright status
  • respect copyright status
To me it doesn't fit with the new terms of service and needs rewriting.

5.  Access to more information about Copyright

In a rather smart move, Pinterest has addressed one of the major deficiencies of the site - the lack of any information about copyright.

Use of the site in an appropriate way assumed users had a good understanding of copyright law.

The reality is that most users had no such understanding - and also didn't read the terms of service which stated that you should only post your own content or content that you had permission to post.

What Pinterest has now done is point people in the direction of the Frequently Asked Questions (and Answers) about Copyright on the Chilling Effects Clearinghouse website
The Chilling Effects Clearinghouse collects and analyzes legal complaints about online activity, helping Internet users to know their rights and understand the law. Chilling Effects welcomes submission of letters from individuals and from Internet service providers and hosts. These submissions enable us to study the prevalence of legal threats and allow Internet users to see the source of content removals.
Chilling Effects aims to support lawful online activity against the chill of unwarranted legal threats.
Chilling Effects Clearing House - About us and participants
The reference to an external site - Chillinghouse - gives them the responsibility for how copyright is explained to people who are rather more expert in this matter than the lawyers initially advising Pinterest proved to be.

I can only imagine that Chilling House has been one of the bodies attempting to show Pinterest the error of its ways.  The smart move by Pinterest is that nobody can now accuse them of failing to explain copyright properly.  Plus the onus for getting it right lies with Chilling House - which I'm sure they're happy to recognise.

However Chilling House has a disclaimer which it is worth noting.  Here's a brief extract.
This website cannot provide individual legal advice -- we cannot analyze your particular website or activity to assure you it is legal....Because the information is written for a general audience, without investigation into the facts of each particular case, it is not legal advice

6. Easier to report copyright infringements


Those seeking to report copyright infringements started to notice that 'on the fly' improvements were being made to how these could be reported over the course of the last month as the copyright furore exploded all over the Internet.

The copyright page opens with the statement.  What it is changing makes that statement a bit more real.
Pinterest ("Pinterest") respects the intellectual property rights of others and expects its users to do the same.

How to report a copyright infringement


The Pinterest copyright page now has an improved copyright infringement form

My recommendation is still to email copyright@pinterest.com with the same details and to request a site-wide takedown of images from your site.  This is because
  • you then acquire a dated record of what you have told Pinterest re what you want taken down - which you can then file and follow up in due course if there is no action.  
  • A form to a company does NOT give you the record you need.
  • you really don't want to be doing forms for every image of yours which you want to be removed from the Pinterest site.  An email letter is more efficient.  I had virtually all of mine down in minutes.

7. Penalties for repeat offenders


One lawyer identified that Pinterest had failed to identify how it proposes to deal with repeat offenders re copyright infringement - as required by the DMCA.

It had no option but to address this and this has now been addressed.   Lawyers with more expertise than me will be able to tell whether or not it is adequate. From my perspective, the proposal seems reasonable to me.  I assume there will be systems which will aggregate the infringement reports for one member.

The site now states the following on its copyright page What if I receive a Copyright Complaint (DMCA) notification?  I've highlighted the key sentence for "repeat offenders"
If you receive a notification that a Pin has been removed due a copyright complaint, it means that the Pin’s content has been deleted from Pinterest at the request of the content’s owner. If your account receives too many copyright complaints, you may lose the ability to Pin new content on Pinterest, and your account may be disabled completely.
My reading of this is that this is the reason why Chief Executive Ben Silbermann had to delete all his boards!  There is presumably now no scope now to report the content that Ben is pinning (one assumes!)

This is again evidence of Pinterest placing the responsibility for content very firmly in the lap of the person who pins the content. Those who pin now need to know and understand what defence in copyright law that they will use if told they're infringing copyright.

8.  File a counter notice re copyright infringement


The site now also advises how to file a counter notice for a notified copyright infringement.  (Scroll down to the bottom of the page.  This could do with an anchor tag and a mention at the beginning of the page!)
This is for those:
  • who are concerned that they are getting too many notifications and hence may lose their ability to pin
  • and/or they may lose their Pinterest membership 

The counterclaim requires the Pinterest member who pinned the content to provide "A statement under penalty of perjury that you have a good faith belief that the content was removed in error."  That gives me some confidence that the system will start to work better.

Perjury


I'm no lawyer but I though it useful to include some links to definitions for those who don't know what perjury means. Here's one definition in relation to US Law.  
Perjury is the criminal offense of lying under oath. A perjury charge may be brought when someone makes a false statement after being sworn in or promising to tell the truth in a legal situation.
Bottom line, perjury is a criminal offence in relation to legal proceedings.  Penalties can involve a jail term.  Those who saw fit to ignore copyright law may be less inclined to ignore this one.

The Counterclaim essentially balances out the rights of the copyright owner and the person who pinned the content and also provides scope to address any malicious reports of infringement.  Speaking personally, I think it would be very unwise for anybody to act in a malicious way as they could easily find themselves also having their account disabled!

Scope for co-operative community action


There's two ways in which communities of interest can act on this new policy:
  1. identify and record repeat infringers
  2. identify and record all those who would like their work to be pinned
The stated policy on repeat infringers also provides scope for to identify and record repeat infringers.  Those who spot potential infringements - as already happens on eBay for example - need a mechanism to be able to report to others their concerns.  I anticipate that the sort of forums which have grown up in the past of co-operative effort around a community of interest will also develop in relation to Pinterest.  Thus the horse artists will look after the horse artists and the textile people will look after the textile people.  It makes sense to me.  It also provides a good basis for taking up cases of repeat infringers with Pinterest.

Such communities of interest also provide a way of signalling what is safe.  So, for example, I've already spotted Pinterest Boards amongst the textile artists which list people who are happy to have their work pinned - and that's as it should be.

It's much more preferable to have people saying "pin me work" rather than all those who are not members and have no interest in Pinterest saying "do not pin my work!"

If the CEO has any sense he will set up mechanisms for the communities of interest to work easily within the Pinterest framework.

9.  NEW Pinterest can no longer sell your content


This one is very interesting.

Very many people complained and stropped about the inclusion of the word "sell" in the Terms of service - in relation to the permissions granted to Pinterest over use of the pinned content.

Pinterest has now removed the word "sell" from the clause.  Simple - problem solved!

Or is it?  I've not yet studied the new terms in enough detail but I'm now wondering how they are going to monetise the site.  Let's remember this is a business and they're not paying whacking bills for server space for terabytes of data out of their kindness of their hearts!

Read this Techcrunch article for why I'm still puzzled - For Pinterest, Revenue Will Turn Copyright Questions Into Real Problems

My personal view is that Pinterest will need to set up a formal licensing system to deal with copyright for those who would like spin-off sales facilitated by Pinterest.  That could also allow a more flexible arrangement whereby a creative person might be OK about having some aspects of their work pinned and generating an income stream under licence - and very much not OK about other aspects of their work over which they want to retain better copyright control

10.  NEW Binding Arbitration 


There's a new paragraph about Binding arbitration.  This, I guess, is probably Pinterest aiming to keep itself out of expensive legal actions in Court.  The thing it only applies to Members and most of the legal actions are going to come from non-members.

If you're concerned in any way about copyright and inappropriate reproduction of your images on Pinterest this might provide a good reason to remove your membership.  That way you are in no way bound by the clause on arbitration - if you don't want to be.

You can always find some other member of your household to be a member to observe the internal workings etc!

New developments which have been signalled


The last part of the blog post indicates two new developments might be in the offing plus one more I spotted.  Below I speculate what these might mean - and I'm using Flickr as a bit of a role model to make sense of it.

1.  NEW (future) A Pinterest Pinterest API 


I'm going to leave it to the tech geeks to explain this.  However what i think it means is that they are going to permit access to new software of apps developed by others to reconfigure content - in much the same way as Flickr allows.

That's a rough guess on my art.  I'm very happy for people to correct me.

2.  NEW (future) Private Pinboards


The corollary of this is what Flickr also has.  Accounts which can be rendered completely private.  This effectively prevents any content from being shared.

A number of people have expressed the wish for private pin boards.  They are, of course, also interested in knowing that all their guilty secrets which they want to bookmark are not also broadcast to the world!

I imagine that the private pinboards are going to either be site wide or on a one-off basis.  The right sort of granulation over privacy control is difficult to get right to start with - as both Facebook and Flickr have found in the past.

3.  NEW (future) Different Account Types


I also noted that Paragraph 4(b) states
 We may maintain different types of accounts for different types of Users.
I think this means they're looking a Facebook model where you could have an account/page for your business and this may vary according to the type of business you are.  However we can only be purely speculative at this stage.

What this means is it could recognise people pinning their own work - a bit like Etsy shop boards - and this would be OK.  Then because the images were pinned other people could then repin them without getting into trouble.

That's the model I favour - we'll have to wait and see whether it happens.

What hasn't changed


The size of the images are still the same.


This is an issue because it is in part what prompted the shouts from the creative community.  A number were rightly concerned that displaying all there is to see up front is hardly an incentive to get people to travel to another site to see the full size image and meet who makes it!

Essentially if the copyright owners are happy this is not an issue.  If there are a lot of people complaining because of infringements then this remains an issue.  We shall have to wait and see.

I'd anticipate a move towards a system which more clearly replicates Google and Facebook re use of thumbnails and locked in links to the "proper" original source in due course - if only because it minimises problems in the long run.  There's no point in having a competitive advantage on image size if it leaves the company fighting legal cases and paying invoices for reproduction fees.

The embed codes are still there

The embed codes are a major bone of contention.  In effect, Pinterest is inviting people to embed and republish yet again the images on yet another site.  If the image is not on the Pinterest site with the permission of the copyright owner, then Pinterest will be viewed as encouraging people to infringe copyright.

and finally.....

Overall, I think Pinterest has shown signs of listening and has made a good effort to address most of the significant problems areas.

However they have not resolved all the problems.  These will not be resolved until the site achieves an extremely high standard with respect to all images on the site being there with the permission of the copyright holder.  They are a long way from that position at present.

  • The image size is still a major issue for each and every item of copyright infringement where it does matter to the copyright owners.
  • the embed codes are still there which to my mind means there's an invite by Pinterest to commit a copyright infringement.  If all the images on Pinterest are legal and permissably according to the copyright owners, the embed code would be OK - but until this is the situation, Pinterest have left themselves open to criticism and legal challenge.

Nor have they yet effectively addressed the level of ignorance about what Pinterest members  can and can't do  among Pinterest members.  There are aspects which could still be spelt out in a much clearer way.  There are aspects which require constant reinforcement.

I think Pinterest they have a lot of work still to do to get people to understand how the site works when it works properly and in line with the terms of service.

In my opinion, until Pinterest members are pointedly asked whether they own the image or have explicit permission from the owner to publish the issue about copyright infringement will not go away.


This has been a marathon post - and I'm sure I going to go on finding things to comment on.  Rather than starting new posts, when I new matters to comment on which are minor I'll update:

More to the point I'm sure you will have things you want to comment on.
DO PLEASE SHARE - AND LEAVE COMMENTS BELOW


See also previous posts on this topic:

12 comments:

Vicki Lee Johnston said...

It is a marathon post but a great reference site for any issues with copyright and Pinterest, many will be most appreciative.
I have to admit I didn't read every little bit - I was speed reading - which is what many do .. and most don't read fine print at all which is where the 'ignorance' issues leaps out in terms of copyright.
When an attempt is made to "Pin It" - there should be something which alerts the pinner to answer "...do you have copyright ownership or permission to pin this?"
A simple question - too many words and it is just more legal jargon which most ignore.
That's it in a nutshell and warns the pinner and protects both parties for future concerns.
I personally would like to have my own private pinboards - in fact when I first saw Pinterest I thought that was what it was - and that you decided who you 'allowed' to see your boards.
I think if artists and photographers, designers etc see Pinterest working towards a template which satisfies all - it has great merit in the future ... as long as there is choice and respect for creative property.
Thank you for addressing this issue so succinctly.

Alena Lang Phillips said...

You have done great amount of work on behave of others. I am not active on Pinterest yet, but am following the developements with interest. Thank you very much for this.

Katherine Tyrrell said...

I think the problem with the site is that there is no reinforcement by Pinterest of the essential points

eg Do people get asked every time they link to an image "Do you own this image or have the permission of the copyright owner to post it?

Katherine Tyrrell said...

Thanks Alena - keep in touch, I'm sure there will yet more developments down the line! :)

Gina said...

Dear Katherine, You have done an enormous amount of work for us. And it is so very much appreciated. I do not use Pinterest and have inserted the meta tag into my HTML. It seems to be working and I have you to thank for helping me.

Katherine Tyrrell said...

Thanks - it's my pleasure to be of assistance

Clive Meredith said...

thanks katherine for bringing the pinterest problem to my attention,i found lots of examples of my work on the site and followed your advice in emailing pinterest who have responded immediately and removed all the images.

Hylla Evans said...

Katherine, this is a terrific service you've done and I appreciate it enormously.
Pinterest should bear the burden of contacting the source poster of the image. Not the copyright owner necessarily as that would be burdensome research, but at least P should generate a bounce back email to the site the image was taken from.
This is a step forward but it's literally the least P could do.

SewCalGal said...

You are thoroughly looking at this perspective from a Pinterest perspective, but don't overlook that ALL of your images on your blog are automatically ending up in Google images (and other online image sources) with no link back to your site, nor credit that the image came from your site. While new and not perfect, Pinterest does have a process to remove copyright images, but needs the community to help report such images when pinned. Google has nothing to do this, nor do other online image repositories.

Also, consider what the benefits are to anyone in the business (e.g. artist, designer) as with pinterest, there is a link back to the source which can provide great PR and future sales for such artists/designers. Again, not such a feature via google/images or other tools.

Yes, some cons, which I believe Pinterest is trying to address and many pros. But, it is good for everyone to choose which is the tools they want to support.

Thanks for sharing your perspective.

SewCalGal
www.sewcalgal.blogspot.com

Katherine Tyrrell said...

Your assertion about Google is incorrect. Every image on Google has a direct link back to the source and not only links to the site, it is also links to the specific part of the site which generated the image. Thus no image is ever divorced from its originator - which is one of the ways that those who have their images stolen are able to identify those who purloined without permission.

On Pinterest images are being posted which have been downloaded from people's websites and hence the link to the artist is lost - and even the name of the artist is lost. In addition copyright information is being stripped from the image and in some instances links to the originating website are also lost. How exactly "markerting benefits" work in this context is lost on me.

Pinterest is also doing far too little to quality control the posting of images which are not the property of the Pinterest member nor does that member have permission to post them to Pinterest. It's only a matter of time before the lawsuits start in the same way they started re film uploaded to YouTube.

Those who argue that images on Pinterest provide great marketing neglect two things:
1) It's for the artist to determine how their images are marketed - not some driveby spectator who is ignorant about copyright
2) Clicks do not equal monetary reward. "Future sales" are for most a mirage.

What exactly is wrong with writing something about the great art you saw and then sharing a link to that site on Facebook? At least the image remains a thumbnail and the artist gets the credit and some positive feedback

Leslie Hawes said...

This article by Sean Broihier of Fine Art America http://fineartamerica.com/pinterest-enables-copyright-theft-on-a-global-scale.html is of great value to anyone questioning whether they want to become part of Pinterest.
I will personally fight against Pinterest and all other similar 'pinboards', like Indulgy http://indulgy.com/
They pose a slippery slope to all artisans now and in the future regarding their ability to retain the rights to their own creative works.

Katherine Tyrrell said...

Many thanks for that link Leslie - I'll add it to my Pinterest website

I'd also not heard of Indulgy - but it looks pretty "crappy" to me!

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