Previously published in The Lawyers Weekly
One of the fastest growing social network sites is Pinterest. It's a photo-sharing site, similar to Flickr, but with an interface based on a physical bulletin board.
Pinterest allows you to post and share (or "pin") your photos and other content with your friends or the world at large, and comment on other users' pinned content. People use the site to share their interests, organize events and get inspiration for their own projects, events and hobbies. Typically, pins are organized by topic or theme to make them easier to find.
Pinning your own content is easy. You can upload photos from your computer or you can take a photo on your iPhone and pin it through the iPhone app. You can even add the photo's GPS location so that other users can check the location for themselves.
From a legal perspective, one of Pinterest's important elements is that it allows you to post other Internet content and re-pin content posted by others. Pinterest encourages this (or at least facilitates it) by supplying an optional "pin it" button for your web browser, so that you can easily import content you like from almost any other website.
This of course raises intellectual property issues: copying and reposting someone else's content without their permission generally amounts to copyright infringement. There are potential defences such as "fair use" in the United States and "fair dealing" in Canada. However, the Canadian defence is quite restrictive — limited to research, private study, criticism/ review and news reporting, and in most cases requiring an acknowledgement of the source — and likely does not apply to most of the pinning and re-pinning that occurs on Pinterest.
Pinterest is aware of this and, like many other U.S.-based social networking sites, it has adopted a notice system for copyright infringement under the (U.S.) Digital Millennium Copyright Act. This system allows copyright owners to notify Pinterest that their content has been reproduced on Pinterest without their permission, and to request that it remove the content. Employing this system helps shield Pinterest from liability under U.S. copyright law — but it does not protect the users who imported the content on to Pinterest in the first place.
Pinterest has taken other steps to minimize its potential liability for copyright infringement (or to prevent the infringement from occurring at all). For example, it created a "no pin" metatag which other websites can use to prevent their content from being copied into Pinterest. Photo-sharing site Flickr was one of the first adopters of the metatag, which "appears on all non-public/non-safe pages,
as well as when a member has disabled sharing of their Flickr content." The intention of releasing this metatag was to prevent infringement. However, some Pinterest users will no doubt assume they have permission to post anything on the Internet if the original website doesn't contain the metatag. They are likely the same people who assume that content is in the "public domain" and freely available for copying and reposting if the owners of the content made it available online. This is not the case. Regardless of whether the owner posted the content online (with or without a "no pin" tag), the content is protected by copyright laws and can generally only be legally copied and reposted with the owner's permission. Therefore, the best advice from a legal perspective is to only pin your own content.
Of course, there is a business flipside to this advice. Proponents of Pinterest argue that even if there is a significant amount of copyright infringement occurring on Pinterest, the site drives a huge amount of traffic, including traffic back to the sites from which the content was copied. That can be great for business, but it only works when the pinned content is taken from the original source, rather than a copied source. That's why Pinterest provides the following encouragement on its home page: "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."
One of the other interesting legal issues with Pinterest is the ownership of content pinned on the site. Until recently, Pinterest's terms of service gave it an irrevocable licence to do anything with the content, including sell it. That raised legal questions about whether Pinterest was purporting to own the content rather than only taking a licence to it. In any case, the broad nature of Pinterest's rights under the terms of use recently received significant negative comment, and as a result Pinterest changed the terms to delete its right to "sell" users' content. The remaining licence is still quite broad, but it is what you would expect to see in a social networking site based on content aggregation and sharing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
