Published by LawTechie - March 27, 2012 - LawTechie

PinterestIt seems that there has been a furor of late over the Pinterest and its (and its users’) potential copyright infringement liability for the “pinned” content on the site. This includes debate over the efficacy of Pinterest’s latest move to change its terms of use.

BusinessInsider published an article, quoting my friend and colleague Itai Mytal, about how one small feature of the site could protect Pinterest against copyright infringement:

By adding a caption, Pinterest is essentially making you comment on the photo. By commenting on that photo, Pinterest can make the argument that having the photo on its site could be protected under “fair use.”

Forbes notes that “caption” should be changed to “description” in order to achieve full “fair use” efficacy.

And of course users are all discussing Pinterest’s latest decision to alter its terms of use which now makes it clear that users can and should pin their own content to avoid copyright infringement issues.

That was a problem, because posting someone else’s content is risking copyright infringement. So Pinterest was encouraging users to get content from other sources and risk liability for infringement. That rule has been changed to encourage users to “be authentic”…

As for my two cents, it seems that Pinterest could further limit its own potential exposure by not actually hosting the pinned content on its servers. Right now it seems that if you click a pic on Pinterest, you get a pop-up of the full-sized image hosted on Pinterest’s own servers. Recall how Google Images avoided liability back in 2007 by hosting only the thumbnails of images which linked to content that was hosted by the original site. Perfect 10, Inc. v., Inc., Google Inc. et al., 508 F.3d 1146 (9th Cir. 2007) (holding that Google’s thumbnails constituted a sufficient “transformative use” to be eligible for the “fair use” defense).

Users, on the other hand, are still (and should be) concerned that their “pins” could lead to copyright infringement liability from content producers. More on that tomorrow.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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