This post originally appeared on the Econsultancy digital marketing blog, where there is an active discussion of Copyright, Pinterest at its terms of use. It also was cited by the Washington Post as an example of how technical and legal architecture is often in conflict..

MIT Tech Review hails Pinterest’s terms of use as a genius-level copyright dodge. And while that may be so, its position is disingenuous to the point of irony.

The problem is that “sharing whatever you like” and copyright infringement are, well, sort of the same thing. Especially as Pinterest encourages people to use “nice big versions” of what they find, and to “share from more than one source”.

On one hand Pinterest makes it easy to grab images from all over the Internet, even though the terms of use say that’s something users will never do.

I’ve already started a pin board to track the legal issues ahead for Pinterest. But thanks to the terms, using Pinterest could end-up landing me in court for doing so. And that has a few smart users backing off from this hot new social network.

If you’d like an overview of Pinterest, see my earlier post: What Is Pinterest? And Why Should I Care?

But if you have a legal orientation, or care about copyright because you’re an artist, or are managing the visual elements of trademark, don’t go away. This is where Pinterest becomes intriguing.

The site does not take the expected step to argue that the images on Pinterest are commentary, and part of a discussion that should be protected by the Fair Use doctrine. There would be all kinds of inconsistent rulings, and Pinterest would have a weak hand.

So far the site has done everything it can to finesse the copyright issue. 

The set up: Pinterest wants you to use others’ images
From the very start, Pinterest encourages you to share. In the welcome note it says you should share images from “more than one source”. It talks about being “nice” and repinning others’ images. It makes a tool so you can easily post images you like from all over the web. As I’ve said however, this, and copyright infringement, is the same thing.

Shocked, shocked to find copyright infringement
So instead, it relies on its terms of use to ‘ensure’ — and by that I mean a wink and nod — that all images are owned by the users who post them.

So millions of users, using browser add-its for grabbing photos, are of course just doing this on their own websites, right? And if they’re not, Pinterest would be shocked. Just as Captain Renault in Casablanca was shocked to find that gambling was going on within the casino. 

By clicking “Accept”, users are saying they “either are the sole and exclusive owner of all Member Content that they make available through the Site, Application and Services or they have all rights, licenses, consents and releases that are necessary.”

Furthermore, if you do have those rights, you just kissed them goodbye by posting the image to the site, as per this section of the terms:

By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.

And then the terms turn to your responsibility if ANYONE sues Pinterest for an image you posted. The terms put you, the user, on the hook to “defend and indemnify” Pinterest and its owner.

So, the instructions may be wrapped up in the guise of sweetness and sharing, but the terms of use are the exact opposite. Fortunately for Pinterest, the terms are far less prominent than the bookmarklet that quickly turns ‘newbies’ into copyright-infringing terminators.

Start the first pinboard for Pinterest lawsuits
Galen Moore at the Boston Business Journal wrote about his foray into Pinterest, in an aptly named article How your business could get sued for using Pinterest. He posted images that real estate firms had sent to the paper of new buildings in Boston. But on reading the terms, he noted that though he had the “use” of the photos, he wasn’t their owner and couldn’t grant others the right to sub-license them. 

Of course, even if Mr. Moore had taken the photos himself, images of creative works such as a buildings or paintings can have underlying copyright issues that would suck us down a new wormhole. Let’s just agree than many (and by that I mean most) images on Pinterest aren’t being posted by their copyright holders.

Kirsten Kowalski who is a lawyer and professional photographer, wrote an even better titled post: Why I Tearfully Deleted my Pinterest Inspiration Boards. Her review of the terms of use, and concluded that “repinning” the images of others falls under this “grant of license” – so that while the service encourages you to repin other’s work, their TOU forbids it without permission.

Is taking down your Pinboard is an over reaction? You can decide. But if you think about this for more than 90 seconds, that puts you among a very small portion of Pinterest users.

Pinterest’s disingenuous copyright bet
So what if Pinterest users are infringing copyright, in spite of the terms of use that says users own image rights? 

Pinterest has developed “nopin” tags to help those that want to keep their work/content off of Pinterest. The site is gambling that only a small minority of content owners will notice any infringement and request removal of their work.

In most cases, Pinterest is spreading the fame of things people like, and often providing SEO-rich links back to the sites they’re taken from.

All of this is based on finesse, born from a shambolic set of terms that has users and Pinterest both subscribing to the total fiction that users own their own copyright.

The entire Pinterest user experience promotes unlicensed use of images, something its terms prohibit absolutely. Do Pinterest’s legal people ever even look at the site? Sure, that’s where the winks come in.

Since users don’t read the terms, they go on generally missing the alternative reality of the agreement they’ve entered into.

And the presumption seems to be that most content owners will be glad to have their work curated on the service. Perhaps they’ll get a link, some traffic, some fame, or even karma.

Besides, who can the sue? Isn’t Pinterest a start-up with no clear revenue plan? We’ll cover that in my next post, which considers whether all this pinning is good business…

MIT Tech Review hails Pinterest’s terms of use as a genius-level copyright dodge. And while that may be so, its position is disingenuous to the point of irony.

The problem is that “sharing whatever you like” and copyright infringement are, well, sort of the same thing. Especially as Pinterest encourages people to use “nice big versions” of what they find, and to “share from more than one source”.

On one hand Pinterest makes it easy to grab images from all over the Internet, even though the terms of use say that’s something users will never do.

I’ve already started a pin board to track the legal issues ahead for Pinterest. But thanks to the terms, using Pinterest could end-up landing me in court for doing so. And that has a few smart users backing off from this hot new social network.

If you’d like an overview of Pinterest, see my earlier post: What Is Pinterest? And Why Should I Care?

But if you have a legal orientation, or care about copyright because you’re an artist, or are managing the visual elements of trademark, don’t go away. This is where Pinterest becomes intriguing.

The site does not take the expected step to argue that the images on Pinterest are commentary, and part of a discussion that should be protected by the Fair Use doctrine. There would be all kinds of inconsistent rulings, and Pinterest would have a weak hand.

So far the site has done everything it can to finesse the copyright issue. 

The set up: Pinterest wants you to use others’ images

From the very start, Pinterest encourages you to share. In the welcome note it says you should share images from “more than one source”. It talks about being “nice” and repinning others’ images. It makes a tool so you can easily post images you like from all over the web. As I’ve said however, this, and copyright infringement, is the same thing.

Shocked, shocked to find copyright infringement

So instead, it relies on its terms of use to ‘ensure’ — and by that I mean a wink and nod — that all images are owned by the users who post them.

So millions of users, using browser add-its for grabbing photos, are of course just doing this on their own websites, right? And if they’re not, Pinterest would be shocked. Just as Captain Renault in Casablanca was shocked to find that gambling was going on within the casino. 

By clicking “Accept”, users are saying they “either are the sole and exclusive owner of all Member Content that they make available through the Site, Application and Services or they have all rights, licenses, consents and releases that are necessary.”

Furthermore, if you do have those rights, you just kissed them goodbye by posting the image to the site, as per this section of the terms:

By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.

And then the terms turn to your responsibility if ANYONE sues Pinterest for an image you posted. The terms put you, the user, on the hook to “defend and indemnify” Pinterest and its owner.

So, the instructions may be wrapped up in the guise of sweetness and sharing, but the terms of use are the exact opposite. Fortunately for Pinterest, the terms are far less prominent than the bookmarklet that quickly turns ‘newbies’ into copyright-infringing terminators.

Start the first pinboard for Pinterest lawsuits

Galen Moore at the Boston Business Journal wrote about his foray into Pinterest, in an aptly named article How your business could get sued for using Pinterest. He posted images that real estate firms had sent to the paper of new buildings in Boston. But on reading the terms, he noted that though he had the “use” of the photos, he wasn’t their owner and couldn’t grant others the right to sub-license them. 

Of course, even if Mr. Moore had taken the photos himself, images of creative works such as a buildings or paintings can have underlying copyright issues that would suck us down a new wormhole. Let’s just agree than many (and by that I mean most) images on Pinterest aren’t being posted by their copyright holders.

Kirsten Kowalski who is a lawyer and professional photographer, wrote an even better titled post: Why I Tearfully Deleted my Pinterest Inspiration Boards. Her review of the terms of use, and concluded that “repinning” the images of others falls under this “grant of license” – so that while the service encourages you to repin other’s work, their TOU forbids it without permission.

Is taking down your Pinboard is an over reaction? You can decide. But if you think about this for more than 90 seconds, that puts you among a very small portion of Pinterest users.

Pinterest’s disingenuous copyright bet

So what if Pinterest users are infringing copyright, in spite of the terms of use that says users own image rights? 

Pinterest has developed “nopin” tags to help those that want to keep their work/content off of Pinterest. The site is gambling that only a small minority of content owners will notice any infringement and request removal of their work.

In most cases, Pinterest is spreading the fame of things people like, and often providing SEO-rich links back to the sites they’re taken from.

All of this is based on finesse, born from a shambolic set of terms that has users and Pinterest both subscribing to the total fiction that users own their own copyright.

The entire Pinterest user experience promotes unlicensed use of images, something its terms prohibit absolutely. Do Pinterest’s legal people ever even look at the site? Sure, that’s where the winks come in.

Since users don’t read the terms, they go on generally missing the alternative reality of the agreement they’ve entered into.

And the presumption seems to be that most content owners will be glad to have their work curated on the service. Perhaps they’ll get a link, some traffic, some fame, or even karma.

Besides, who can the sue? Isn’t Pinterest a start-up with no clear revenue plan? We’ll cover that in my next post, which considers whether all this pinning is good business…

We’ve learned that vampires are apparently obsessed with copyright.  Now consider the official Twilight t-shirt contest.  Fans are invited to make a shirt to promote the new film.  Of course, entries must comply with a few rules. (In case you haven’t noticed, vampires are also rather controlling.)

Here are some select rules to keep mortals on the right side of the undead:

• No use of images or depictions of the actors in the movie
  <Hey, wait: The official contest image (above) uses the actors’ images, so why can we?
  Oh, we’re not vampires.>
  
• No blood, fangs, stakes thru the heart, coffins or bats
  <Those would be passé.>
• No pictures of apples (!)
  <Because only Apple could be more copyright obsessed than a vampire.>
  
• No undergarments (you cannot create a Twilight thong, boxer shorts or boxer briefs)
  <Vampires prefer going “commando”.>

Vampire stories are a genre.  They are built on examples and conventions from previous, similar stories.  Perhaps vampires are sensitive about copyright because their claims to originality may be compromised. After a few lawsuits [1] [2], the undead are especially aware of their weakness.

What do the undead think about inside their coffins (or at Starbucks) during daylight hours?  Intellectual property,  apparently, as evidenced by an unlikely copyright lawsuit.

The bloodsuckers at  Summit Entertainment, makers of the Twilight vampire movies, have filed a lawsuit against the makers of a jacket worn by a character in their film. The clothing manufacturer’s offense was, well, advertising that fact and including reference to the film and its characters.

Here’s how they presented copy aimed at getting teens to buy their jacket:

“Bella Swann wears this jacket in Twilight and scores the hottest vampire in high school, and so can you!“

First, friend, take it from someone who has dated both hot vampires and hot witches: go with witches. They’re easier, and don’t bite, and are way more fun at brunch.

That said, the statement,  though it uses character names, is in fact true.  Summit’s creative work included the jacket, which itself is a creative work.  Summit conjoined the jacket and the character.

The best defense against litigious vampires
Perhaps the best defense against copyright-obsessed vampires would be the equivalent of holding up a mirror to them: a countersuit.  After all, the movie incorporated the jacket company’s creative work.  It’s not that much more flimsy than the case at hand.

Stunningly, Summit is asking for all profits from the jacket’s sales, triple damages for willfulness, and for all remaining stock to be turned over to the studio for destruction.

Vampires, blah.

This week, Greenpeace posted a gruesome anti-Nestlé commercial on YouTube complaining that Nestlé SA buys palm oil from companies that destroy the Indonesian rainforest to plant oil palms.

The 60-second video depicts a bored office worker enjoying a Kit Kat, which, rather than being the popular chocolate-hazelnut ladyfinger-style confection, appears to be a chocolate-covered ape finger. As he munches on the treat, it oozes blood over his chin and across his keyboard, shocking his co-workers. “Have a break?” reads the on-screen text. “Give the orangu-tan a break.”
(The Globe & Mail)

Fewer than  1,000 people had viewed the video, which supported the appearance of a hand-full of protesters who paraded in front of the Croydon headquarters of Nestlé UK. They wore orangutan costumes and carried signs that had the word “Killer” executed in the familiar red-on-white Kit Kat font…and they went away.

Then Nestle’s legal and social media team made things worse. For future reference, here’s how not to respond.

#1 File a bogus copyright takedown notice.
There is no copyright issue in the video at all. But even if there had been, doing so only elevated the issue. YouTube took down the video, and moments later it popped up on Vimeo. The story was now no longer about an obscure video, but about a corporation abusing IP law to stifle speech.

#2 Debate on Facebook with sarcasm and wholly bogus trademark threats.
Fueled by the bogus takedown, some anti-Nestlé visitors went to the corporate Facebook page to complain (see coverage in CNET).  Some of the fans used parody images of the Kit-Kat trademark. Nestle’s social moderator compounded its self-imposed injuries by copping some attitude, and threatened that would remove altered versions of their marks.

#3 Retreat and stop the madness.

Finally, under fire, the Nestlé rep apologized for snapping back at fans. “This (deleting logos) was one in a series of mistakes for which I would like to apologize. And for being rude. We’ve stopped deleting posts, and I have stopped being rude.”

Two possible lessons:
Turkeys Go with Success: The bigger you are, the more stakeholders you have, the more likely you’ll have those who hector you. Be smart, be sensitive to their point of view, but above all be thick-skinned. The ad was pretty disgusting, but Nestlé lowered its standards in response.

Let negative conversions die out that don’t reach scale. This one may have been at the tipping point of being at scale, but entering the conversation with a bogus DMCA takedown notice set the wrong tone.  A softer touch wouldn’t have fueled the fire.

So, what do you take away from this cautionary tale?

Remember my 2010 prediction that brand holders should beware of clowns? I called it the Coulrophobia Epidemic of 2010.  

Logorama did it with trademarks, and won an Oscar.

Girl Talk did it with music, gaining top rankings from Rolling Stone, Blender and Time magazine.

And now Eric Faden uses the most copyrighted video anywhere, Disney® cartoons, both to explain and to demonstrate the reality of “fair use” in documentary film making. It takes the works of “the very folks we can thank for nearly endless copyright terms” and uses them to argue against longer copyrights and attacks on fair use.

To paraphrase Rosencrantz and Guildenstern, “They are using their power of Free Speech, simply to demonstrate it exists.“

Be sure to read the opening copyright un-warning; this is provocation, parody and education from the very start.

McDonald’s® must be smarting from Logorama‘s use of Ronald McDonald as a Pulp Fiction-like gunman. Now Disney has its cartoon catalog used to speak against it in a creative and highly defensible way.

Faden’s work A Fair(y) Use Tale is educational, utterly transformative in its use of source material, and in no way replaces the entertainment use of the original works.  Like Disney’s works, A Fair(y) Use Tale is protected by copyright law, but in this case it is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License.

I believe we’re seeing a pattern of backlash against rights holders who over claim the legal protection afforded to their brand, characters, or recording. After all, there is a value in protecting civic dialog, and this requires access to creative and corporate symbols, not for theft, but for creating richer, more effective options of expression.

And yes, in a world where Ashton Kutcher is considered a brand, these “backlash clowns” may have a wind of discontent filling their sails.

Brad Templeton, chairman of the board of the Electronic Frontier Foundation, has produced his own “Downfall” parody video, making fun of the fact that Constantin Films has issued DMCA notices to remove all of the “Downfall” parody videos from YouTube.

This little-known film has become an Internet sensation and, as I note below, Constantin Film’s action has ironically given Templeton’s use of the film a defensible protected status.

The use of the film to make fun of Hitler being banned from Xbox or the downfall of Hillary Clinton’s presidential campaign wouldn’t be protected as parody speech, because the topic isn’t the film.

However, ironically, Constantin Films’ effort to force other versions of the film clip down make this version of it defensible because it directly comments on the producers and their film.

Ah, sweet irony.

Eric Goldman at the Technology & Marketing Law blog recounts a hysterically misguided ruling in Colorado, which holds a hospital liable for trademark and copyright infringement because they mention the ranking they received from a health quality website.

You can’t copyright a number
Imagine enjoining rock bands from saying Billboard ranked them #1, because that ranking “#1″ is copyrighted.  Or a publisher being unable to refer to their New York Times books ranking.  

What’s the creative expression captured in a numeric rating? Sorry, there isn’t any. The formula may be a creative expression, but the result is just a number.

You can use trademarks in commercial speech
More preposterously, the judge concluded that in citing the source of the ranking, the hospital mentioned the plaintiff’s trademarked name, and so infringed the mark. This would be like saying  that if I won an Oscar, I couldn’t mention it without the Academy of Motion Picture’s permission.

Anyway, trademarks absolutely may be used in factual commercial statements. Is there an implied endorsement by doing this? Well, yes.  They are rankings after all.

This ruling would blot out substantial portions of speech by mistakenly extending copyright and trademark far beyond their intended purposes. Rather than protecting expression and preventing confusion about the source of goods, the ruling would interrupt efficient and truthful speech.

A 50-person law firm with a national practice in asbestos litigation found that the text of its Elder Law website was copied verbatim as the basis for a new site for a firm in another part of the state.  The plaintiff firm, Brayton Purcell, filed suit claiming copyright infringement, false advertising, unfair competition and misappropriation.

The two-person defendant firm, San Diego-based Recordon & Recordon, argued that it hired a company to construct its website, and that it was unaware that the content was stolen from a competitor without its knowledge.

They further argued that the case had been filed in the wrong jurisdiction, as the firm doesn’t maintain offices or staff within the jurisdiction of the 9th Circuit Court. Without a business nexus in Southern California, they claimed, the case should have been originally filed in Northern California.

The court ruled that since very few competitors exist in Elder Law, the copied site had been “expressly aimed” to compete with the plaintiff firm.

As glad as I am to see plagiarizing law firms held accountable, I must admit that dissenting Judge Stephen Reinhardt has a valid point:

“… express aiming” in these circumstances leaves every website operator vulnerable to the possibility “he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides,” Reinhardt noted “[d]ue process and basic principles of fairness prohibit such an expansive exercise of personal jurisdiction.”

What if the facts were the same, but the companies were within different national boundaries? Would mere knowledge of a competitor create a sufficient nexus for the website owner to be tried in a foreign court?

Though the original verdict may have been from the wrong court, it was the right decision. Recordon & Recordon was found “one-third responsible for the copyright violation” and ordered to pay $24,000 in statutory damages and nearly $37,000 in fees and costs.

In a ruling that could cause shockwaves throughout the online legal community, a federal judge in Seattle has held that IP addresses are not personally identifiable information.

According to  U.S. District Court Judge Richard Jones: “In order for ‘personally identifiable information’ to be personally identifiable, it must identify a person. But an IP address identifies a computer.”

This ruling  goes to the very heart of many RIAA and MPAA court cases.

The ruling came in a class-action case against Microsoft in which the plaintiffs charged the software maker with a violation of its own user agreement because it collected IP addresses during software updates.

Microsoft successfully argued that the collection of an IP address does not identify any person because no names or physical addresses are gathered. The judge dismissed the case.

According to Online Media Daily:

[…] some say that Jones’s decision about IP addresses is inconsistent with other recent opinions about the issue. Eric Goldman, director of the High Tech Law Institute at Santa Clara University, points out that the European Union considers IP addresses to be personal information. Last year, the EU said that search engines should expunge users’ IP addresses as soon as possible.

Additionally, a court in New Jersey ruled last year that Internet service providers can’t disclose users’ IP addresses without a subpoena, on the theory that people expect their IP addresses will be kept private.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, criticizes the Microsoft ruling as “a silly decision.” “The judge didn’t understand the significance of the IP address or the reason that it was collected,” he says.

An IP address identifies hardware connected to the internet, either directly or indirectly. It’s a leap to presume that it identifies a specific person. There may be a correlation, but no direct association. Restricting the permanent collection of IP addresses may still be a good thing in the EU decision because of the strong correlation, but that hardly implies ‘Joe Blow’  is equivalent to ‘206.04.23.44’.

This argument will all recede into memory as soon as everybody is issued a number that uniquely identifies them anywhere on the internet. Then you’ll see Todd Davis driving trucks around Manhattan with his “Digital ID number” plastered on the side.  Oh, joy.

There is a growing disconnect between the legal staff who write terms of use for websites, those who operate the site, and site visitors. I’ve come to believe that each level of disconnection introduces new sets of legal risks, which this story only start to illustrate.

Chris Soghoian observed in CNET that

Google’s terms of service, thick with legalese, state that:

“You may not use … Google’s products, software, services and web sites … and may not accept the Terms if … you are not of legal age to form a binding contract with Google.

Of course if you’re in the US that means that anyone under 18 is accessing Google’s computer system in violation of its terms of service. And this applies to all Google services, YouTube, Gmail, and Image Search.

Ignoring Legal Risks Leads to Selective Prosecution
Federal prosecutors recently used the Computer Fraud and Abuse Act to selectively prosecute Lori Drew as a hacker for violating MySpace’s terms of service. She lied about her identity, and harassed a troubled minor who was also using the system under a false identity. After the child committed suicide, a media and political frenzy resulted in federal prosecutors turning a breach of the site’s terms, which might not have even been civilly enforcable, in to a federal criminal case.

Ignoring the Disconnect Between Terms and Practice May Partly Void the Agreement
Obviously, online services retain the right to modify their own terms of use.  You may begin a user experience with a minimal grant of rights and a maximum of restrictions when reflexively accepting terms. However, when site staff clearly operate to the contrary to those terms, and in some instances assure users that terms in the TOS won’t be enforced, isn’t the contract being modified within the user experience?

Smoking Gun: Google for Kids
Google in fact provides safe-search resources just for kids. There’s no easily accessible link to terms of service, so arriving new users aren’t even exposed to them.

Question 1: By creating this site and its other practices, doesn’t Google by their own practice modify their terms?

Question 2: Could any reasonable person believe that a new visitor to the Google Directory for Kids and Teens should be bound by these unseen terms, which even Google seems to disregard?

Question 3: What risk is created by the gap between the lawyers who wrote the TOU, site management who follows their own drummer, and visitors who ignore the terms are entirely disconnected.

Are such TOU’s unenforcable sharades posing as contracts?