This policy creates several issues. First, it places the burden for any infringing activity on users. Second, it may
not protect Pinterest in the first place. Pinterest could still be the subject of claims for contributory copyright
infringement for its actions (encouraging or aiding infringement through the site) and inactions (not taking
more affirmative steps to prevent infringement). Finally, re-pinners may also be at risk if they re- pin
infringing content when it is highly unlikely that the original user who pinned the item had permission to do
so.
Pinterest’s Response
Pinterest has taken several steps to address concerns over copyright issues on its site. Pinterest has a Digital
Millennium Copyright Act (DMCA) Policy in effect. The DMCA provides a safe harbor for organizations like
Pinterest that potentially protects them from liability for infringement. The safe harbor applies when the site
provides a mechanism for copyright holders to report alleged infringement to the site and then the site
promptly removes the allegedly infringing content. Pinterest also offers a “no pin” code. Copyright holders
can add the code to their content so that it cannot then be pinned on Pinterest, a so called opt out.
Recently, Pinterest has said that it (and its lawyers) feel that the site is protected by the DMCA. The company
contends that its activities fall squarely under the safe harbor of the DMCA and that they are committed to
responding efficiently to all reports of copyright infringement.
Pinterest also revised its terms of service on April 6, 2012, in addition to making other changes to its legal
policies and other disclosures. The license grant from users to Pinterest no longer gives Pinterest the right to
sell the pinned content. This change should alleviate some of the copyright concern. The license grant from
users, however, is still fairly broad, although limited to the Pinterest site. Pinterest also made changes to
make it easier for copyright holders to report copyright violations to Pinterest. Finally, Pinterest changed the
Pin Etiquette rule encouraging pinners to avoid self promotion to now only encourage them to be authentic.
This change comes in response to critiques that by telling pinners to avoid self promotion, Pinterest was
encouraging them to post other people’s content, possibly in violation of copyright laws.
Does That Settle the Issue?
Not really. If the DMCA protects anyone, it is Pinterest and not its users. The DMCA does not provide any
protection against liability to users for copyright infringement and if a user frequently posts material that is
the subject of complaints of infringement, the user can have her account disabled. But the DMCA may not
even protect Pinterest. To come under the DMCA safe harbor, you cannot have actual knowledge of
infringement on your site. It is unclear how the general knowledge standard would apply in the case of
Pinterest.
The opt out code is helpful to users as it protects them (and Pinterest) from the copyright holders who are
most concerned about their content being posted on Pinterest. It also protects people and businesses who do
not want their content to be pinned on Pinterest. Simply not posting content with the opt out code may not be
enough, however, to protect either Pinterest or users just because they post content that does not include the
code. The DMCA policy also helps copyright holders who want to prevent unauthorized use of their content
on Pinterest. If you find unauthorized pins of your content on Pinterest, you can notify Pinterest through the
process posted in their legal section in order to have that content removed.
The “Pin It” button appearing on a website is likely the most promising development. If a copyright holder
places a “Pin It” icon with her content, it may act as an implied license to pin that content on Pinterest.
The changes to the terms of service and other disclosure language will help alleviate some of the concern