Not what Pinterest were expecting you to pin. And pin and pin and pin....

Fence [noun]: “a receiver of stolen goods” – Merriam Webster.
“An individual who knowingly buys stolen property for later resale, sometimes in a legitimate market.” – Wikipedia.

Like every latest greatest thing on the interweb Pinterest has seen a sudden rush of subscribers simply because…well…because it’s the latest greatest thing on the interweb. Described as a “virtual pinboard”, Pinterest claims to “let you organize and share all the beautiful things you find on the web”. This is usually done by a “Pin It” button, a browser bookmarklet that copies content from a web page to the user’s Pinterest board. From there it can be copied by other Pinterest users to their boards, and from there…well, you get the idea.

Alarm bells should already be ringing, but that hasn’t prevented a stampede for the Pinterest bandwagon. BMI Airlines launched a Pinterest lottery; GUESS, a Pinterest contest. Amateur Photographer, the world’s oldest photographic magazine, began pinning iconic photographs from the likes of Magnum, Corbis and Getty Images. The UK’s National Portrait Gallery has likewise been pinning images from their collection. And millions of individuals have been trawling the web, pinning whatever takes their fancy.

And then the questions started. Like: who owns all this stuff anyway? And what does Pinterest plan to do with it all?

As the answers emerged – somebody else owns it, and Pinterest now claim rights to do whatever they want with it – some of the corporate pinners began to back off. First the Boston Business Journal pulled all their material after only one day on-site. Then Amateur Photographer’s pins quietly disappeared: unlike the BBJ the AP has declined to say why. The NPG material is still there, but after comments from photographers the NPG is now “looking at the implications for the Gallery”.

As concerns grew it became clear that for many people Pinterest’s real crime wasn’t just that they had created a system designed to encourage easy copyright infringement, but that they attempt to shift the blame for the ensuing infringements onto their users:

“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.”

“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.”

That may seem extreme, but it’s not unusual: many Internet sites have something similar, and since most users don’t read the terms of use nobody makes a fuss. But Pinterest got unlucky: one of their users was a lawyer, she did read the terms, and alarmed by what she found removed the material she had pinned and explained why. Naturally other lawyers picked up on the story, then other Pinterest users, and suddenly Pinterest found themselves in the eye of the web’s latest copyright storm.

There is of course a way to use Pinterest perfectly legally: just pin work you’ve created yourself or own the rights to. It’s true that in doing so you give Pinterest the rights to do anything they want with your work, including selling it. But if you’re a tireless self-promoter who doesn’t care how your work is used you may feel the publicity you get from Pinterest makes the trade-off worthwhile.

Except for one problem: that’s not what other Pinterest users – your audience – actually want you to do. So when tireless self-promoter and internet fauxtographer Thomas Hawk went on a “manic pinning episode of his own work” he was accused by one fan and Pinterest user of “masturbating in public” in using Pinterest for self-promotion.

And Pinterest agree, albeit in rather more restrained language:

“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.”

So by their own admission Pinterest isn’t primarily for publishing original creative work, but republishing the work of third parties who almost inevitably will not have given permission.

Pinterest’s main defence in all this is the Digital Millennium Copyright Act, which provides Internet service providers with a measure of protection against prosecution as a result of copyright infringement by their users. But DMCA requirements are quite specific. They’re a package deal in which the provider is supposed to meet all the requirements, not pick and choose which parts they prefer, adding additional language to suit. However, according to intellectual property lawyer Connie Mableson, that’s exactly what Pinterest have done, leaving their DMCA defence looking distinctly creaky.

Even if Pinterest fix the wording of their DMCA offer there’s a further threat lurking: the DMCA is intended to protect providers some of whose users upload infringing content from time to time, not to protect companies whose entire raison d’être is copyright infringement. But that’s exactly the position Pinterest is in: without copyright infringement they have no business. Anyone at Pinterest who thinks that doesn’t matter needs to read this:

“We have spent millions of dollars on legal advice over the last few years and our legal advisers have always told us that we are secure and that we are protected by the DMCA which is a law in the US that is protecting online service providers of liability for the actions of their users.”

Those are the words of Megaupload founder Kim Dotcom, currently facing charges of racketeering, copyright infringement and money laundering. And what led to those charges? Why, Megaupload’s members were uploading and redistributing copyrighted material without permission – just like Pinterest’s members.

Econsultancy has asked: is Pinterest a copyright time bomb? The simple answer is yes. Pinterest is a cynical exercise that enables and encourages others to steal and is profiting from those thefts, while simultaneously attempting to plead innocence and place the blame on those who Pinterest encouraged to steal in the first place. But when the lawyers come calling, as they surely will, Pinterest may find that by shafting both creators and consumers of culture they have precious few friends left to defend them.

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8 Responses to “Pinterest: A Broken Business Model”

  1. Max Blinkhorn Max Blinkhorn says:

    Beautifully put. And so, so, right.

  2. Tony Sleep Tony Sleep says:

    http://piccsy.com is exactly the same. They too provide tools for burglary then claim it’s nothing to do with them when punters infringe. No bylines, no back links to origin, metadata all gone. They even provide a DMCA take-down procedure with stern warnings that having the temerity to complain may mean you get outed on Chillingeffects.org. They’re in Canada. They are one of the reasons I have removed all of my photos from the public web. After 17 years I give up: it’s just a cess pool of bad behaviour feigning cool and freedom.

  3. Joe Beasley Joe Beasley says:

    Fact: http://invite.print-erest.com/ is offering to print work from Pinterest Pinboards.
    Last night we posted on pint-erest.com Facebook page, statements to the effect that we had not given permission for our work to be printed (there is no way the the printing of my art by a 3rd party for a fee qualifies as “fair use”) and most of the comments were deleted. In a disscussion with the site owner who asked if uploading by the artist only and the selling of posters with a part of the profit going to the artist “would work for me” I replied that it was working with me on 4 sites and I ask how they were going to vet the people uploading. I have not received a answer to that question. Questions that are being asked are not being answered!

    I have the right to determine at what price my work will be sold and on what products, ect!

  4. A very good summary. The pressure on Pinterest is beginning to mount from all quarters. I too believe its only a matter of time before a lawsuit brings the whole house of cards down. Since the copyright angle started to gain traction Pinterest have modified a couple of things.

    First, they issued a meta tag for webmasters to include in their pages which physically prohibits pinning and also adds a pop-up telling the prospective pinner that the webmaster of that site has prohibited pinning. I would advise (while we are all watching while the fuse slowly burns) everyone to add this meta to their site pages or use the Wordpress plugin that’s available. Its not ideal that i need to tell people not to steal my work but any measures in the current climate are welcomed. I’ve listed and linked to both pieces of code you need in my blog post on Pinterest here:

    http://incamerastock.com/2012/03/03/pinteresting-stuff-you-should-know-about-pinterest/

    Second, they have now forced users to “comment” on a pinned picture, no doubt to try and claim “Fair Use”! Both moves seem to be reactions to the furrow that is surrounding their users activities and an attempt to stave off the inevitable legal action.

    The clock is well and truly ticking…

  5. GS GS says:

    They’re certainly profiting in the sense that they’re building up a potentially valuable business that could be sold at some point in the future.

    Following on from Tony Sleep’s comment, did anyone notice that on 26 January Daphne Keller and David-John Collins of Google told the Leveson Inquiry that when Google sends copies of takedown requests to the Chilling Effects website, sender information is removed? This was untrue.

  6. Excellent research and breakdown. I struggled for a while with embracing the inevitable or attempting to block it. Quite a few of my images have been pinned and re-pinned, and I have found (not surprisingly), that very little traffic from pinterest comes back to my site. If someone has a full size image on pinterest, why would they bother going back to the source.

    While I find the meta tag a useful option for my site, a larger problem is people pinning directly from google images. Attribution is then completely lost, because the originating site is google, not your own. So even there, the meta tag won’t help, and chances are you’ll never be able to even find your images on pinterest. Outside of watermarking, there’s not a whole lot that can be done to prevent your images being pinned. So… what now?

  7. GS GS says:

    There’s a handy add-on for Firefox called “who stole my pictures”. You can right-click on any photo and it takes you straight to matching pics on various search engines.

    I’m cutting up some of my photos into two of three pieces these days. People still get a hint of the photo on Google Images and can click through to see the whole thing and they can’t link to the full image. Of course they can do a screen grab, crop and save, but that is far too much work for 99% of then — they just want an instant fix without doing any work.

  8. That first “lawyer” that you linked is in fact a photographer. A pretty good one, by the way.

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