So what about Pinterest anyway? Do genealogists have anything to worry about if they use it?
The answer, of course — you could see this coming, couldn’t you? — is simple: it depends.
Both the strength of Pinterest and its greatest weakness is the fact that pinning something on Pinterest isn’t just posting a link from the site where you saw the item to Pinterest. As noted by Joshua Jarvis on the Trademark & Copyright Law blog,
Pinterest is about one thing – aggregation of third-party content. When a Pinterest user euphemistically “pins” a “pin” on a “pinboard,” she’s really “copying” a “full-size photograph” to “Pinterest’s servers.” Needless to say, the bright spotlight of copyright law is harshly shining on Pinterest: even a cursory stroll through Pinterest’s various user pinboards reveals that the vast majority of pins are copyrighted works, not in the public domain, and not licensed under Creative Commons or a similar free-to-distribute regime.1
That’s why there are copyright issues involved in the Pinterest business model and a genealogist’s use of Pinterest. Because one of the rights that copyright law gives to the original creator of that item “pinned” — copied — to Pinterest is “the exclusive right … to reproduce the copyrighted work.”2
Now Pinterest gets around that issue in two ways: the big one is the so-called safe harbor provision under the Digital Millennium Copyright Act. Under that part of the law, a business like Pinterest isn’t going to be liable if its users put copyrighted materials online on its site if it (a) tells them not to and (b) has a system for taking copyrighted materials down right away if the copyright owner complains.3
And what does that mean exactly? Intellectual property lawyer Rick Sanders, writing in a blog post last year, put it this way:
“(P)inning” other people’s work without permission or license is copyright infringement, the only question being whether it’s also a fair use. This is because “pinning” actually involves making a copy of the image file onto Pinterest’s servers. It is direct infringement by you, because you’re the one doing the “pinning,” and it’s indirect infringement by Pinterest because it’s making your infringement possible. The difference between you and Pinterest is that Pinterest can avail itself of the DMCA safe harbor, and you can’t.7
In short, you can get sued, and you don’t have a defense. If Pinterest gets sued, it does.
But you’re still on the hook for your own actions — for your own attorney’s fees if you’re ever sued and for any judgment a copyright owner gets against you.
So does that mean you should stop using Pinterest? No. It means you need to be careful and stop and think about what it is you’re pinning.
Some things out on the Internet are fair game; others are not. Things that likely won’t get you into trouble include:
• things that are in the public domain;9
• things that are covered by a Creative Commons license as long as you stay within the precise terms of the license;10 and
• anything where you have permission to copy it — and that should include anything that has a “Pin this!” button or link on the site where you originally saw it.
And when it doubt? Ask. You absolutely can never go wrong asking for permission.
- Joshua Jarvis, “Pinterest’s Popularity Soars, But (P)Interesting Copyright Questions Abound,” Trademark & Copyright Law, posted 5 Mar 2012 (http://www.trademarkandcopyrightlawblog.com/ : accessed 18 Feb 2013). ↩
- 17 U.S.C. § 106. ↩
- See 17 U.S.C. § 512. And see the explanation at “DMCA Safe Harbors,” IT Law Wiki (http://itlaw.wikia.com/wiki/ : accessed 18 Feb 2013). ↩
- “Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013). ↩
- “Acceptable Use Policy,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013). ↩
- Rick Sanders, “Pinterest and Copyright: Everyone Just Take a Nice Deep Breath,” Aaron Sanders Law blog, posted 19 Mar 2012 (http://www.aaronsanderslaw.com/blog/ : accessed 18 Feb 2013). ↩
- Compare paragraph 7 of the “Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013), and paragraph 8 of the “Business Terms of Service,” Pinterest (http://pinterest.com/ : accessed 18 Feb 2013). ↩
- As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” U.S. Copyright Office, “Definitions” (http://www.copyright.gov : accessed 18 Feb 2013). ↩
- See generally “About The Licenses,” Creative Commons (http://creativecommons.org : accessed 18 Feb 2013). ↩