Pinterest and eDiscovery/legal Issues?
Everyone talks about 20/20 hindsight, and what they all would have done differently a few years ago if any of them had understood the far-reaching implications of ediscovery, particularly as it relates to social media. With the growing popularity of Pinterest, this is the perfect time to use the new legal precedents being set by cases related to Facebook, Twitter and other social media platforms, and set safer standards for your use from the start.
Good Clean Fun
On the surface, Pinterest seems like harmless (if slightly addictive) Internet fun, not to mention an easy way to gain exposure for your work, particularly for visual artists. Users create boards upon which they pin images or products which appeal to them. Other members repin items from your board onto theirs, and so on; the pinned images are shared throughout the Pinterest community. And therein lies the problem.
Unfortunately, the entire basis of the Pinterest site invites copyright infringement. The Pinterest TOS specifically states that, by uploading, users acknowledge that the content they are sharing is solely theirs and that they have the proper licensing or consent to use that content. Yet, the way the site is actually used, with users sharing content and rarely crediting the original source, completely violates those terms. Although there have not been any examples yet of anyone bringing suit against Pinterest or its users for using their images without permission, it seems only a matter of time before the site is targeted for ediscovery in pending cases.
Kirsten Kowalski, who is both an avid photographer and a lawyer, recently deleted all of her Pinterest inspiration boards. In a blog post about her decision, she explains her concerns over the Pinterest TOS. Having recently heard complaints from other photographers over having their content being shared on Facebook without permission or acknowledgement, she wondered how Pinterest is any different. From her position as an artist, she feels strongly that she and other artists should have control over how their work is shared and reproduced, even if that reproduction is just the virtual act of being pinned. From her perspective as a lawyer, she feels the liability factor of the TOS makes users far too vulnerable. If someone does decide to claim infringement, the individual user will be responsible not only for his or her own legal representation, but also any legal fees incurred defending the site itself. Ultimately, deciding the potential cost of Pinterest was too high, and Kowalski chose to opt out.
If the idea of individual users being held responsible for copyright infringement rather than the hosting site seems absurd, it might be a good idea to take a minute and remember Napster. The music sharing site was found liable for multiple copyright violations, but many of its individual users were also charged and had to pay damages. In another instance, a photographer filed suit against Google for using thumbnails of his images in search results without permission or proper attribution. Though the case was decided in Google’s favor, it changed the way many think about fair use.
Pinterest is still a young site finding its way, and many of the specific legalities will change and adapt. In the meantime, for those concerned with the implications of copyright infringement specific to Pinterest, HTML code may be embedded which prevents items on your site from being pinned. While being alarmist and deleting your Pinterest account may not be necessary, it’s still wise to proceed with caution. In the age of ediscovery, nothing online is sacred.
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