As some of you may have heard, Pinterest is the newest social media craze sweeping the nation. The idea behind the site is to create a virtual pin board of cool crap you find on the internet and want to share with your friends.
I know, it’s totally new and unlike anything we’ve ever seen before!
The site is still in its infancy, but it’s already facing its first backlash/potential legal controversy, a problem kicked off a few weeks ago by a lawyer-slash-photographer who thought she noticed something fishy about the startup’s terms of service policy. Namely, how does a company protect itself when it’s arguably built on the premise of users sharing art they don’t own? Pass the buck, of course…
[T]his is where I got really nervous.
“YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.” (yes, this is in ALL CAPS right in their TOU for a reason).
And then, there is this:
“you agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”
When I first read this, I thought: RRRROMGz. Rabble rabble rabble. The site should offer some protection, like YouTube and Tumblr do. Because those massive sites do offer their users some protection, right?
Hmm. Maybe I should check on that.
Well, it turns out they don’t. The terms of service on YouTube and Tumblr (as one writer has said, “Pinterest is only appealing to people who missed the boat on Tumblr.”) are nearly identical. The words aren’t necessarily in all caps, but the implications appear to be essentially the same.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
And from Tumblr:
In no event shall Tumblr, its directors, officers, shareholders, employees or members be liable with respect to the Site or the Services for (a) any indirect, incidental, punitive, or consequential damages of any kind whatsoever; (b) damages for loss of use, profits, data, images, Subscriber Content or other intangibles; (c) damages for unauthorized use, non-performance of the Site, errors or omissions; or (d) damages related to downloading or posting Content. Tumblr’s and the Site’s collective liability under this agreement shall be limited to three hundred United States Dollars. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to Subscriber….
Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of Subscriber’s access to the Site, use of the Services, the violation of this Agreement by Subscriber, or the infringement by Subscriber, or any third party using the Subscriber’s account, of any intellectual property or other right of any person or entity.
When an individual posts stuff owned by someone else on a site like YouTube, Tumblr, whatever, the content owner could take legal action against that person (especially since Section 230 could complicate going after the host site). As a practical matter, though, no one wants to sue a 15-year-old girl in Tennessee for posting Justin Bieber photos she doesn’t own (unless you are the RIAA, but that is a different story).
So this kerfuffle might make some people think twice about going too Pinterest crazy, if for no other reason than the site is unique in that it is arguably based upon the idea of reposting things that are not yours. But generally (and perhaps unfortunately), it’s just business as usual on the internet.
Pinterest’s founder, Ben Silbermann, actually responded to Kowalski, saying he’s just “a guy with a computer who had a vision to create this site where everyone can share stuff.” To his credit, The Atlantic reported that some retailers like getting their stuff reposted, because it drives sales.
Still, Silbermann might want to upgrade to being a guy with a computer and a lawyer. It might be only a matter of time until the copyright bar smells blood — and cash — in the water.
Why I Tearfully Deleted my Pinterest Inspiration Boards [DDK Portraits]
A Lawyer Who Is Also A Photographer Just Deleted All Her Pinterest Boards Out Of Fear [Business Insider]
My Date with Ben Silberman — Following up and Drying My Tears [DDK Portraits]
Pinterest’s Copyright Strategy Puts the Burden on Users [Atlantic Wire]