Pinterest’s Updated Terms: Copyright Concerns Continue

Last Friday, Pinterest released its updated Terms of Service, declaring that these terms “are easier to understand and better reflect the direction our company is headed in the future.” So that raises the question: where is Pinterest headed?

The new Terms of Service alter the license that Pinterest users grant to the social media site. The license is no longer irrevocable or perpetual, and users no longer grant Pinterest the right to license or sell their content. Artists and photographers can take some comfort that Pinterest really is not out to repurpose their copyrighted material.

At the same time, Pinterest’s new provision “How long we keep your content” raises some red flags. After termination or deactivation of an account, Pinterest will retain User Content for a “commercially reasonable period of time for backup, archival, or audit purposes. In other words, expect your content to be available to Pinterest for a long time! In addition, users cannot take down content that has already been re-pinned. So in essence, if you are going to put up content on Pinterest, get used to it being there for the duration and out of your control.

In reality, this is true of all social media. Lack of privacy and control is the consideration for all the benefits social media offer. One either accepts that or opts out. What makes Pinterest different? The re-pinning of the entire image, not just a thumbnail makes copyright infringement so easy. The new terms of service go to great lengths to explain that the user should only pin material to which it holds rights: “You understand that you are in the best position to know if the materials you post or legally allowed….[p]lease be careful when deciding whether to make user content available on our service.”  While Pinterest announced that it has made it easier to report infringements, we have no indication that Pinterest will be vigilant in demanding that its users avoid copyright infringement. Pinterest’s copyright problems just are not going away.

Pinterest attempts to side step these issues by declaring that its service is to be used for “personal, noncommercial use to allow you to express yourself, discuss public issues, report on issues of public concern, engage in parity and as expressly permitted by the features of the Service.”  It seems Pinterest is trying to carve out a fair use exception to copyright law for its whole site. Yet, the terms of service specifically state that a person may open an account on behalf of a company or organization, and Pinterest is certainly not shutting down branded, commercial pages.

Furthermore, Pinterest has altered its “Pin Etiquette” to eliminate its mandate against “self-promotion” in favor of a mandate to “be authentic.” Does that mean self-promotion is now allowed so long as it is authentic? That’s good news for the legions of brands on Pinterest who might be concerned that they are violating the “noncommercial” mandate of the Terms. (See also a discussion of this change in the Wall Street Journal here.)

While Pinterest’s new terms clarify that its intent is not nefarious, its attempts to carve out a fair use exception to copyright law remain untested. Artists should make a business decision about whether to post on Pinterest, and brands should still take steps to minimize risk on Pinterest. In short, we still do not know Pinterest is heading. It will be up to users, both individuals and brands, to define the terms of their use of Pinterest.

See previous posts on Pinterest’s legal issues here.