The Tussle Around Fair Use: Is Pinterest On The Right Track?

Prabhavathi Matta, Bharathkumar Gunasekaran, Ignacio Pérez, Shaohan Chen, Eunkwang Joo

 Images are the next big thing on the Internet. With constrictions on the number of characters in other social networking sites, images are a way to express yourself in a succinct way. It is precisely for this reason that Pinterest has gained widespread prominence on the Internet as an online image-sharing network. Users pin their favorite photos that they find online or upload themselves to share it with other pinterest users, who then re-pin to share them. Nielsen reported that Pinterest had nearly 16 million unique visitors in January in the United States alone, double the number it had in November last year. Most of the sites users are female.

After having extended its market reach, it is natural for a web startup to figure out a way to bring revenue. In the case of Pinterest, this has already begun with their pins linking to commerce websites and Pinterest getting a share for the referral. But what happens when the image used by the user was a copyrighted to an artist. As one can imagine, the site’s utility opens itself up to a lot of copyright violations by its members. This causes a lot of headaches for photographers and artists. This is where we can draw a parallel between P10 vs. Google case. In this blog we will strive to find parallels between Google’s and Pinterest’s usage of images and the potential implications. It is also important to consider that there is no lawsuit  against Pinterest at this time, but the nature of Pinterest service raises a lot of legal questions which we discussed below.

In the similar way as Google’s image search service, Pinterest displays copyright images without a direct approval of the authors and, most of the time, without even the knowledge of the authors. But Pinterest is already looking for a way to avoid legal problems and several changes have been made in the terms of services. In March of this year the website change its terms of services in a proconsumer way, the website will no longer sell users’ images, but the website is now delegating all copyright infringement responsibility on the user.

To establish direct copyright infringement, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) violation of one of the exclusive rights granted “under copyright. Considering Pinterest directly infringes, in that it displays the full-size images hosted by third-party websites, it is important for Pinterest to analyze its service in terms of possible vicarious and contributory liability theories. But both “fair use” and “public domain” are gray areas, making it difficult to ensure that Pinterest liable or not by infringing the rights of others.

Fair Use doctrine permits use of copyrighted material for different purposes  – news reporting, search engine, research, teaching – the main purpose being stimulation of creativity for enrichment of the general public. We can look Pinterest as a search engine for images as of now, since they are not promoting any specific images for profit yet.

If we analyze under the the perspective of the fair use statements, Pinterest have some favorable points, but others clearly fall in gray areas. For example, under the topic of the purpose and character of the use, Pinterest asks users to comment on the image while pinning. The question arises whether the simple act of re-pinning and commenting on a work can be considered creativity. We believe that this“commenting act on the pin” does not add any transformative value to the picture.  And there is a huge difference with other types of comments: When someone reviews a  movie, the comment does not involve the full reproduction of that particular movie, but there is a full reproduction of the photography in Pinterest.

In Perfect 10 vs Google case, the court ruled that scaled/thumbnail images used in a Google Image search engine constituted fair use. Pinterest shows thumbnails of the images in the boards that any user can create, but after clicking any of those thumbnails, a full version of the image is displayed. In this full reproduction of the images, there is no clear references to the ownership or copyright of the images. Besides when the original image is deleted, the copy of the image on Pinterest’s server is not deleted.

Regarding the point whether Pinterest usage of photos is applicable to Commercial or Noncommercial topic, Pinterest business model does not include the concept of adwords or adsense, but they are creating a huge database with the opinion of users over that copyrighted images, and this situation falls in a gray area for two topics: the transformative work vs. the commercial use of that database. Considering that Pinterest goals are focused on create a huge database of images with the user opinions, this is much less broader than Google’s goals, which is to organize world’s information. And considering the use of the image in this way could be interpreted as a direct use, this could be a hard point to avoid for Pinterest’s lawyers.

In terms of the nature of the copyrighted work, it is easily conceivable that photography is art. We know that the courts tend to give greater protection to works of art. This factor weighs heavily against Pinterest. Since images can be considered as artistic expression, it cannot be considered fair use.

With respect to the amount and substantiality of the portion used in relation to the copyrighted work as a whole, In Perfect 10 vs Google, the court also agreed that including an inline link is not the same as hosting the material yourself. In the case of Pinterest, the images are copied 100% and the pinterest image does not differ at all from the original image. This also cannot be considered as fair use.

Finally, we should consider the effect of the use upon the potential market for or value of the copyrighted work. It is not easy to establish what could be the possible potential market for an image. In the case of Pinterest, its most plausible business model aims to find what it is interesting for the users and offer them the right product. But an image could have different artistic purposes. Is Pinterest impeding the artistic intention? The most likely answer for this question is that Pinterest is not interfering with the original purposes of any photography, but it is not compensating for the use of the photo in a different context.

According to Pinterest terms of use, the user is responsible for what is posted:

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.

This part of the terms of service helps to relate Pinterest’s possible legal problems with previously “convicted” websites that were dedicated to allows users to share information, like Napster. Pinterest knows that its service can be used for copyright infringement, so it is clear that they fall in the category of “facilitating copyright infringement”.

Regarding vicarious infringement, in the case of Perfect 10 vs Google, the District Court states,

To prove vicarious infringement, P10 must show (1) that Google enjoys a direct financial benefit from the infringing activity of third-party websites that host and serve infringing copies of P10 photographs and (2) that Google has declined to exercise the right and ability to supervise or control the infringing 857*857 activity.

It goes on to compare it with the case of Napster. For the first part to judge vicarious infringement, the court concluded that “Google clearly benefits financially from third parties’ by displaying P10’s photos” by utilizing AdSense. For the second part, the point is “the ability to block infringers”. Napster’s architecture was based on a proprietary, closed-universe system, not an open, web-based service. It can control content  and once it removes the content which infringes copyright from its own website, the content becomes inaccessible. In contrast, Google cannot control over the whole Web. Google can only remove links of infringers yet the site is still there and is accessible by other means. Besides, Google cannot analyze every image in terms of infringement of content. For the lack of the “right and ability to control” infringing activity of others, Google is not responsible to vicarious infringement.

Returning to Pinterest, even though it does not earn any financial benefit by operating the website for now, there is a possibility that Pinterest can make revenue afterwards. It can be deduced from the P10 v. Google case, that the benefit would be admitted as direct financial benefit if it contains any infringing images on its website. Regarding the second part, Pinterest is not able to analyze every image it has in its website in terms of infringement similar to Google. The rate of growth in the number of images is high which causes Pinterest not to be able to identify each image. Pinterest, however, is a “closed-universe” system as Napster was. It stores images and other metadata on its own servers so that it can handle any content on its website. If Pinterest removes a link to any image, the image no longer exists in the world. For this point Pinterest would have the responsibility to delete infringing contents when it is required to block. Hence, if Pinterest starts to earn financial benefit from infringing content, the responsibility of vicarious infringement will follow as well.

The ease with which information can be copied over the World Wide Web makes it difficult to protect copyrighted content from infringement. The blurry nature of the contours of laws governing copyrighted content on the net poses a lot of challenges for companies whose business model revolves around user generated content.

The main difference between Google and Pinterest is their ability to have control over contents. If one has the ability, it is assumed to have the responsibility to control infringement. For this reason it is expected that businesses that depend on user generated content provide service without storing the contents in order to avoid any risk. Yet another strategy for the corporations is to try and cooperate with copyright holders and share their profits by advertizing the contents stored.

Finally, to think about the current and potential problems arising from copyright law’s interaction with Pinterest’s technology and society, we analyzed these problems based on different point of views from different types of stakeholders in Pinterest’s world. There are three different groups of players that formed the Pinterest: 1) Content owners, who own the copyright of the contents; 2) Pinterest users, who use Pinterest’s service to create their collections of images they like; 3) Pinterest team, who provide the service to run the business.

There are three main different types of content copyright owners in Pinterest’s case: Pinterest users, professional photographers, and business associations such as e-commerce retailers. In the case of Pinterest users and business association, they are more willing to pin their own contents in order to show the world and try to receive benefits such as acquiring more “Likes” or attract potential customers to purchase their products through the linked images. For professional photographers, however, the case becomes different. Since most of professional photographers sell their work to sustain their business, the service that Pinterest provides might have the potential risk of decreasing people’s willingness to purchase their work. Unlike other thumbnails cases we are going to discuss this week, the quality and pixel on Pinterest’s website is much clear and sometimes can also be reused if users intend to do so.

Even though Pinterest has provided the solution (to insert some HTML codes Pinterest provided into the web pages) for professional photographers to prevent users from pinning their work, there is still questionable since professional photographers cannot prevent users from taking screenshot of their work them post those images onto Pinterest board by using upload tools which Pinterest provided. Besides, in the long term, we also doubt if there will be other legal and/or ethical problems once Pinterest switches their business model and try to acquire profits from these contents.

After all, copyrighted contents play really important roles not only in Pinterest world but also in our real world, and how to maintain a fair and sustainable ecosystem of sharing will be the next biggest challenge for this fast growing company.