[jfarmer]

I have one direct comment and one meta-comment about the issue of Pinteret and copyright.

First, I see no issue with their Terms of Service. That language is 100% cover-your-ass boilerplate, and any site that allows people to upload content will have a similar clause in their ToS. Facebook, YouTube, SoundCloud, etc. all do.

See, e.g., section 6.C of YouTube's ToS: http://www.youtube.com/static?gl=US&template=terms

If you find people are sharing your copyrighted material on Pinterest you should file a DMCA claim with them. That's how the mechanism is designed to work, for better or worse.

Second, when you react viscerally to what Pinterest is doing or enabling, think carefully about your opinion of YouTube. With respect to content, is there a substantive difference between these early days of Pinterest and the early days of YouTube?

The MPAA is probably saying, "See? You don't like it when it happens to you, either."

[antiterra]

The indemnification clause is definitely 100% boilerplate and used in most any site that allows user-generated content. Facebook contains it near verbatim in item 15.2 of their terms. The license grant is a bit different, since Facebook allows you to terminate the license, though under particular conditions.

The significant issue here is the idea that the intended primary use for Pinterest may infringe on the rights of others. This is what took down Napster, and, to me, indemnifying Pintereist is too risky at this point.

It's my understanding that Pinterest is attempting to move to licensed and sponsored pins and they haven't annoyed any large industry groups and might even fare better legally than YouTube did. Who knows.

[jfarmer]

Yes, they're definitely playing with fire, and they'll have to address it soon given the rate they're growing.

But the outrage, outrage, OUTRAGE at Pinterest over this clause here just tells me people are ignorant of (1) what this clause really means and (2) how many times they've agreed to it in the past.

It's 100% nerdrage in my opinion, and a month from now nobody will be talking about it.

[ktizo]

I cannot see how you can have (in reality, not legally) agreed to a clause without first knowing about it.

[petegrif]

I think this is extremely common. Most people don't read Terms of Service Agreements. And an even higher percentage of people don't read Updates to such agreements.

[jfarmer]

Much of it is a conceit, yes, and I'm not qualified to comment on the legal precedents surrounding such licenses.

I'm sure Pinterest makes you check a box saying you agree to the Terms of Use before they let you create an account.

Whether that's sufficient is up to a court to decide, and an attorney could tell you the likelihood of a successful suit given a specific fact pattern.

I'm not an attorney, though.

As I said below, people -- engineers, especially -- get caught up in contractual technicalities. The fundamental question is: do you trust Pinterest to do right by you?

Flickr has a similar clause that every photographer who has uploaded their photos has agreed to, but they do right by their users and so nobody believes one day Flickr is going to undo all that work. It would alienate their customers.

If you think Pinterest is untrustworthy, why do you think some text on a screen that they wrote themselves is going to impact their behavior one way or another?

[jacobolus]

Actually, Flickr’s TOS (now a general Yahoo one) is quite different. They make it clear that their rights are limited to the specific uses obvious and essential to the function of their sites:

> Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

> With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

The key here is “solely for the purpose for which such Content was submitted or made available.” Pinterest’s ToS doesn’t have such language.

Additionally, Yahoo’s ToS doesn’t indemnify Yahoo against all possible liability or force their legal bills w/r/t copyright claims &c. onto users. The relevant language is much more constrained:

> You agree that Yahoo! has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Yahoo! Services. You acknowledge that Yahoo! reserves the right to log off accounts that are inactive for an extended period of time.

[afiske]

Although Yahoo is definitely more constrained then Pinterest in terms of their license language, they actually do have a similar indemnity clause:

"You agree to indemnify and hold Yahoo! and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Yahoo! Services, your use of the Yahoo! Services, your connection to the Yahoo! Services, your violation of the TOS, or your violation of any rights of another."

[greendestiny]

Pinterest has built a service around sharing much like Reddit but instead of using links it appropriates the content and tries to 'pin' that on the user. I fully expect Pinterest to have to change the way they operate to make it more inline with a google images style of caching, where they assume the responsibility for reproducing the images. I think Pinterest just needs some smarter lawyers.

[zerostar07]

Does the ToS indemnify them the way they think they do anyway? If it ever came to court , i doubt pinterest would be able to put the blame solely on the user.

[petegrif]

I think the point is well made about Youtube. There was indeed a huge amount of 'pirated' content on Youtube in the early days. Pinterest may be even worse because (a) the UI is specifically designed to make it incredibly easy to copy content. The overwhelming majority of Pinterest's content appears to be copied in this way. With Youtube at least people could and did upload a huge amount of their own content. And this is directly relevant to (b) Whereas Youtube was about hosting video content which may or may not have been copied Pinterest is so dominantly about copying content that it is much more like the case of the P2P sites whose whole modus operandi was to enable copying. It wasn't an unexpected or relatively minor aspect of their business - it was their business. And IMHO copying is Pinterest's business. The courts took a dim view of the P2P sites claiming that they were just the innocent service providers because of the overwhelming dominance of the use of the service and the fact that the site was designed to facilitate it. My suspicion is that Pinterest's moves to provide facilities to block pinning are legally motivated to fend off suits to the effect that they are unashamedly a copying engine.