For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?

from the calm-down,-sparky dept

Tue, Mar 13th 2012 2:10pm — Mike Masnick

Last month we suggested that copyright holders stop freaking out over Pinterest. At the time, we noted there were two areas that people were panicking about: one was the terms of service and the other was whether or not Pinterest itself was violating the copyrights of images that are "pinned" by its users. We focused on the latter issue (and pointed out it was stupid) and breezed past the first issue by noting that the terms of service issue was silly, because the terms are mostly boilerplate language used by pretty much every online site.

Unfortunately, it appears that not everyone reads Techdirt (tragic, that) and the freakout has continued -- and it only seems to have grown over the past few weeks. We keep seeing more and more articles giving the terms of service issue attention. So many of the articles point back at a silly blog post by a lawyer describing how she "tearfully deleted" her Pinterest boards after reading the terms of service. For whatever reason, this story went viral, despite the fact that even the way she wrote it suggests this is one of her first forays into internet terms of service and copyright issues. She also notes in her post that "you have no right to reproduce this article or any portion thereof" which is a copyfraud statement, overclaiming rights. Yes, I do have the right to produce "portions thereof" in situations where it's fair use, and I will do so -- such as here, when I am commenting on her article.

Either way, her "tearful" post covers ground that's been covered many times before. This same issue comes up every so often when people read online terms of service for the first time. In the past we've seen similar freakouts about Twitpic, Google Plus and other sites as well.

Thankfully Nancy Sims, the copyright librarian at the University of Minnesota Libraries, puts the smack down on the FUD that people are kicking up concerning Pinterest's indemnification, right to share and copyright license clauses. She notes that these elements are found in just about every user-generated content site's terms of service, and goes through the details of Tumblr, YouTube, Facebook and even her own University's terms of service:

Tumblr
Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."
Full Tumblr Terms of Service
YouTube
Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."
(Not to mention points 9 and 10, in all their caps-locked glory.)
Full YouTube Terms of Service
Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!)
Full Facebook Terms of Service
And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))
Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

This kind of stuff is standard. Hell, even we've got some similar terms over at the Insight Community (and we had to fight with our lawyers to push back on some of them). All of these terms are pretty standard. They're basically meant to prevent the company from getting sued if you abuse the service, which is kind of silly since the companies are mostly protected by safe harbors anyway, and no tech startup would ever actually use one of these indemnity clauses against an ordinary user because they'd then lose every single other user they have.

I recommend people read the rest of Sims' article about all of this, as she notes that there's a tremendous amount of FUD making the rounds concerning Pinterest, which seems to be creating an unnecessary chilling effect against using the site.

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Filed Under: copyright, indemnification, terms of service
Companies: facebook, pinterest, tumblr, youtube

39 Comments

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weneedhelp (profile), 13 Mar 2012 @ 2:23pm

Sounds so scary.... BOO!!!
When you access the Insight Community or open one of our HTML emails, we may automatically record certain information from your system by using different types of tracking technology.

Techdirt is big brother ohhh noooooosss.
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Joe Masciantonio (profile), 13 Mar 2012 @ 2:24pm

FUD on the internet? no way
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That Anonymous Coward (profile), 13 Mar 2012 @ 2:25pm

Well she has just ended her law career, and that actually is the best thing to have happen.

A trained lawyer, entered into a contract on her own behalf without reading it first. When someone else made her aware of the terms then she decided she needed to read the document in question.

She then uses copyfraud to protect herself, making it very clear -
A - She is not a good lawyer.
B - Does not understand the law.

Enjoy your 15 min of "I'm a lawyer" fame. Good luck deleting it, the internet never forgets no matter how many baseless lawsuits you file to erase it.

To quote Mindy...
Ok lady love you, buhbye.
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Yartrebo (profile), 13 Mar 2012 @ 2:26pm

They may be pretty standard terms, but that doesn't mean they're good or anything. IMO, they're evidence of three major problems in our society:

1: It's ridiculously expensive to be sued, even if found completely innocent (to the point that barratry is brutally effective).
2: That there is a huge imbalance of power between individuals and organizations (or between larger and smaller organizations): Notice how there are no indemnities from the website to the user.
3: That contract law is extremely broad, and the only punishment for making a contract in violation of the few restrictions that exist is for that section to be removed and reinterpreted as narrowly as possible.

IMO, a boycott is unmerited, but it doesn't mean that all is fine with contract law.
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GMacGuffin (profile), 13 Mar 2012 @ 2:38pm

Re:
I'll bet she's a fine lawyer, in a field she knows something about. Clearly this is not it.

Ask a personal injury lawyer about SEC requirements, you might as well as your dog.
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That Anonymous Coward (profile), 13 Mar 2012 @ 2:38pm

On a side note....
This is the 2nd (3rd) time we've had a photographer lawyer bless us with comedy of this level.

The 2 or 3 is because one of them managed to get mentioned twice.

http://www.techdirt.com/articles/20110831/02573715750/can-someone-block-google-passing-alo ng-dmca-to-chillingeffects.shtml

http://www.techdirt.com/articles/20111119/01060316841/godaddy-ta kes-down-entire-site-copyright-attorneyphotographer-over-bogus-dmca-claim.shtml

So what I have learned is when I need to retain a lawyer one of my first questions will be if they are a photographer as well and that will help me cut likely candidates.
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GMacGuffin (profile), 13 Mar 2012 @ 2:42pm

Re: Re:
*ask your dog.

(Oh, and a smart lawyer might have run this by a lawyer who did know this area. Lawyers just love to talk about stuff they know.)
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That Anonymous Coward (profile), 13 Mar 2012 @ 2:42pm

Re: Re:
a personal injury lawyer would not make blanket statements without first covering his own ass.
He would point out not his area of focus, and if pressed would have to look at the laws that covered it.

He also would not add as a PS that the blog post was not meant as legal advice, and a PPS saying how much you love the service and asking the service to call you.

He most likely wouldn't use FB as a good source for material and then try to drum up business.

Bad lawyer is bad.
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GMacGuffin (profile), 13 Mar 2012 @ 2:45pm

Re: On a side note....
Also ask them if they have ever personally sued a website for user-generated content. That inexplicably happens a lot despite site immunity (see Profession Eric Goldman's blog - he is not kind to them either).
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GMacGuffin (profile), 13 Mar 2012 @ 2:46pm

Re: Re: Re:
Point taken.
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That Anonymous Coward (profile), 13 Mar 2012 @ 3:03pm

Re: Re: On a side note....
The list of lawyers I'd use is actually pretty short.
I've scratched off the copyright trolls, photographer lawyers, anyone who ever represented Perfect 10... the list keeps getting longer.

I'd rather hire or get referrals from the lawyers fighting for the "good guys".
Techdirt in a pinch you can use it as a roledex of good and bad lawyers.
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Designerfx (profile), 13 Mar 2012 @ 3:10pm

uh, not quite
only one of those requires you link to facebook, which is facebook itself. The rest do not.

pinterest dropped that requirement. I was quite pissed they started with it though - it highlights a moneygrab to me.
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Anonymous Coward, 13 Mar 2012 @ 3:17pm

I've read about Pinterest, but haven't tried it, and haven't followed either of the panics about it, but the first thing that came to mind while reading this article was this; Good, maybe people finally start noticing and pushing back on crazy terms of service and eula's. (BTW, yes I'm guilty about ignoring them as well)

Oh, and world, while we're at it, please stop with the crazy 30-line legalese insanity below e-mails.
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illuminaut (profile), 13 Mar 2012 @ 3:36pm

I thought the issue was more that overzealous photographers/artists might sue pinterest because they store copies of their work. The TOS is standard boilerplate, sure, but if you pinned the work of someone else and the guy in turn sues pinterest, you're the one who promised to indemnify them.

I don't even use pinterest so I can't be sure I'm getting this right. This is based on what I read in her blog post. I wouldn't be too surprised if one of those self-righteous overzealous entitled artists decides to make a big stink about something and you might be the one having to deal with it. Am I getting this wrong?
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That Anonymous Coward (profile), 13 Mar 2012 @ 4:15pm

Re:
No they would sue Pinterest because they have deeper pockets, not because they have a legal leg to stand on.
Pinterest provides a service, they do not randomly pick things from your browser and add them to a page.
The proper party to be sued then would be the end user, but then one has to ignore fair use and other arguments.

This "lawyer" (I suspect her qualifications) finally read the terms of service after a bunch of people on Facebook heard something and it went big. (A previous example would be the Onion story about the Abortionplex. There are FB users still convinced it exists.)
This "lawyer" then decided to read the terms of a contract she entered into previously and suddenly they were so vile and wrong she had to tearfully delete her stuff.
She then tired to hit Pinterest up to speak to her about how to make the policy right.
A rational person pointed out these are the same terms used on many major sites, and no one is fleeing those in droves.

A service provider, under law, has no fault in one of their users doing naughty things. Because lawyers are douchebags and like to find new ways around these things, they add wording to the EULA's that make doubly sure they are covered. This cuts what they have to pay a lawyer to defend them in court way down.
"Your honor, we are a service provider and shielded from this lawsuit by that law and in addition the end user who cause the problem agreed the fault was solely theirs. We move for us to be dismissed."

The original blogger is a "lawyer" and a "photographer" so I am guessing she feels she has some super insight into these things. The law however is not about feelings.

This is the sensation of the moment, tomorrow snooki will slap a paternity test order on the house plant she was filmed molesting and people will move on. There will remain a small group who thinks pinterest is doing something to screw them, and ignore that most online service providers are doing the same thing.
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MitchLabuda (profile), 13 Mar 2012 @ 4:53pm

Read the TOS?
"Member Content
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. 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. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content."

How does the site, sell, content it does not own?

"modify"? Modify?

Fair use allows for modification?

What of the embed function, that allows anyone visiting Pinterest to snag a copy of content that the site does not own and the member may not own and the modify the content and paste it elsewhere?
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MitchLabuda (profile), 13 Mar 2012 @ 4:59pm

Re:
The TOS sets out what the site could do, sell, modify, etc.

Attribution is faulty at times. Google is not a content creator, but links on Pinterest point to google and not the content creator.

Modifying content that neither the member owns or the site owns, is concerning as well.
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Joe Beasley, 13 Mar 2012 @ 5:20pm

At the heart of the Pinterest terms and conditions is this paragraph -

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. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit
any such Member Content.
http://artists-bill-of-rights.org/news/campaign-news/pinterest-%11-our-view-of-this-projec t/

http://invite.print-erest.com/?r=http%3A%2F%2Fddkportraits.com%2F2012%2F03%2Fmy-top-50-respons es-to-your-questions-alpharetta-photographer-responds-to-issues-regarding-pinterest-blogs%2F

Prin t-erest "Hey Kimba, we removed the picture that was asked to be removed. Sorry if your comment was attached to that. Our site is awaiting the Pinterest API."

Show me where another social media site claims the right to SELL the artwork that a 3rd party links to it!
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F!, 13 Mar 2012 @ 5:26pm

Re: Re: Re: On a side note....
I think (not sure, didn't find anything in a cursory search just now) EFF and/or ACLU already do this. Would also probably be more appropriate for them as well. If they don't have a public list, I'm sure they can help you find one should the need arise, knock on wood.
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Andrew (profile), 13 Mar 2012 @ 5:43pm

Re: Read the TOS?
Sure, modification (possibly creating a derivative work) can be fair use. But Pinterest wants to avoid having to employ a fair use defence by getting a licence to use the material anyway, and does so in a broad (though pretty typical for a TOS) manner to cover as many circumstances as they can. Though I'm happy to be corrected, modifications will probably be limited to resizing, cropping and changing the image quality or format.

Typically the right to exploit the content is revoked if the work is removed from the service in question, which in practice would stop the service, for example, using it as part of a major ad campaign or something else wildly beyond the intent of the original uploader, though I didn't see such a clause after scanning the Pinterest TOS.
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Anonymous Coward, 13 Mar 2012 @ 5:53pm

Re:
Facebook probably have a sell in their terms of service somewhere, the reason being if they didn't they wouldn't be able to sell the data they collect to third parties, any ad supported service may have equal or equivalent terms.

Also it limits liability if anybody tries to sue them in the future since a permission was granted to do such a thing even in a commercial setting. So nobody can sue them for criminal copyright infringement.

The more I look at it the more I believe this will become standard everywhere and artists will have a hard time trying to convince people not to use those and will be forced to give up certain rights if they want to use that platform to get exposure.
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MitchLabuda (profile), 13 Mar 2012 @ 5:55pm

Re: Re: Read the TOS?
Pinterest is creating derivative art?

It is a social media site.
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Andrew (profile), 13 Mar 2012 @ 6:03pm

Re:
Show me where another social media site claims the right to SELL the artwork that a 3rd party links to it!

I'm not sure how "sell" should be interpreted (please jump in if you're familiar with this language!), but, as Mike said, they're doing this to protect themselves from the actions of their users: they want to ensure that, if I upload a picture to the site and someone gets upset and sues, it's my problem, not theirs.

If I upload one of your photos to the site, I am not in a position to grant Pinterest a licence to the work and so Pinterest has no right to exploit it, no matter what it says in their contract with me (excepting rights under any licence you may have given me, fair use and other defences).
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Andrew (profile), 13 Mar 2012 @ 6:12pm

Re: Re: Re: Read the TOS?
Well, probably not. It's unlikely anything they do will be sufficiently transformative to create a derivative work, but this is an additional defence and does not rule out fair use of the original work. But the reason for all this language is to avoid a court case by getting limited (though pretty broad) rights to works in the first place. I am curious about the inclusion of "sell" though - not familiar with the language here.
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Joe Beasley, 13 Mar 2012 @ 6:36pm

Re: Re:
Print-erest has stated that it is awaiting the Pinterest API. and will be offering to print posters of the boards. How are they going to get permission from the content creators when the pins link to http://www.google.com/imghp

Some of the members are not taking pins from the content creator's site, but from google images, ect
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That Anonymous Coward (profile), 13 Mar 2012 @ 7:06pm

Re: Re: Re: Re: On a side note....
For copyright trolling cases they used to have the Randazza Group on their list. Only problem is Marc Randazza is currently doing the copyright troll shakedown for one of his clients.

Others on that list only offered the "help" of negotiating a lower "settlement" figure, ignoring that an IP address =! a person.

They don't rate them, but one needs to do ones own homework in this area.
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Anonymous Coward, 13 Mar 2012 @ 8:33pm

I like this part:

License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

I am surprised that no smart lawyer has skipped copyright law, and not moved directly onto fraud. Clearly, if you know something is copyright, and post it, you are granting a fraudulent license.
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Anonymous Coward, 14 Mar 2012 @ 12:34am

People should do what I do and add a "Legalese" header to their HTTP connections with the URL of a ToS agreement that nullifies any ToS agreements on the sites they go to. Problem solved.
(I used to send the entire text of the agreement with each connection, but then I noticed that websites that do this just send the URL.)
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Anonymous Coward, 14 Mar 2012 @ 2:09am

I DEMAND MY RIGHT TO USE YOUR STUFF WITHOUT PERMISSION!!!
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MitchLabuda (profile), 14 Mar 2012 @ 2:34am

Re:
"if you know something is copyright, and post it, you are granting a fraudulent license."

Very true, which is why the DMCA is in place for people to lodge complaints.
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Ninja (profile), 14 Mar 2012 @ 4:21am

lulz, I saw these terms a while back and they are pretty scary.. But as nicely pointed out here most terms are scary. I personally give a shit to terms of use, if they ban me I'll just go elsewhere. I just be more careful with Google because my main mail is there. Other than that the best course of action is to have multiple sources (ie: use alternative pic services)
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Dominic Sayers (profile), 14 Mar 2012 @ 7:47am

Copyright killing innovation
If this furore, however groundless, harms Pinterest then it's a good example of repressive copyright law killing innovation.

The effect may be indirect but the root cause is clear.
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Anonymous Coward, 14 Mar 2012 @ 8:53am

Re: Copyright killing innovation
Really? I see sites such as the above opening up all the time that survive and prosper despite the existence of copyright law.
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Daniel, 19 Mar 2012 @ 8:09pm

So your legal argument is "everyone else is doing it"?
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Antone Johnson (profile), 23 Mar 2012 @ 9:55am

Re: Re: Re: On a side note....
I think going with any lawyer who's represented Google in any related matters would be a no-brainer. Not that they'd come cheap.
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Mitch Labuda (profile), 23 Mar 2012 @ 10:24am

The TOS of Pinterest is the core issue
There is more to the TOS than the oft quoted and cited, responsibility for what you post part.

The remainder of the TOS sets out what the site may do with member content, and a member cannot own content is not his or hers, which is another twisted part of puzzle.

The site owners have made changes, but, none the less links to, Pinned via pinmarklet from
google.com.au is not the content owner and is a defect of the site.

To some of us, it is about attribution and proper credit
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Antone Johnson (profile), 24 Mar 2012 @ 8:30am

Thank you Mike!
Thank you Mike! As a social media lawyer and startup advisor, I've been facepalming for weeks over the lunacy of this flap. The amount of FUD stirred up by misinformed people and media that repeat stories like Kirsten's without consulting any Internet law experts is appalling. The creative community makes things worse by (rightly) being vigilant about policing photographers' copyrights within the boundaries of the law, while (wrongly) ignoring or misinterpreting the fair use doctrine or (worse) focusing on wholly irrelevant issues like those raised by Kirsten. Nothing to see here, people, move on.

Well, actually, there is plenty to see here, but it's all the same issues presented by every major UGC site since at least MySpace in 2003 (where I'm pretty sure we cribbed the TOS from first-generation UGC and social sites like GeoCities and Match.com) and Google Image Search. Pinterest is the latest variation on a theme, with some factual wrinkles that might affect the fair use analysis, but every single issue people are freaking about was explored and pushed to its limits by Google, Facebook, MySpace, YouTube, Flickr and more over the past decade, not to mention the newer generation of social media like Flipboard, Tumblr and Instapaper.

� Rep and warranty about right to post content: Standard.
� Indemnity: Standard, and virtually never enforced.
� Grant-of-license: Mostly standard. Some sites make it easier or harder to revoke the content license, but that's about it.

These issues make for good panel discussions at Internet law conferences and lectures by law professors, but none of them will destroy Pinterest and it's incredibly unlikely that they'd harm any individual user.
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SouthernMuse, 29 Dec 2014 @ 6:07pm

My take on T&C copyright language
One of my art friends used to give me dire warnings about how Facebook, Blogger, and all these services had this dangerous language that would, basically, let them take your art, make it their own, and share it with the world forever. I think he meant the language about rights to make derivative works, and rights to worldwide distribution. My friend may have had good reason, having been burned in one of those Y2K layoff things; he couldn't take back articles he'd written under hire. Truly, it is the nature of the web that if you upload a hi-resolution art file, it might be shared "forever" whether Facebook or Blogger intends it or not. When I read the T&C, it seems reasonable. If you post a photo or article ~ say on FB or Pinterest; and it is necessarily cropped to fit their format, or briefly quoted, with the end trailing off in an ellipses; I guess you could later sue, claiming they made a "derivative work" by cropping your photo wrong, or by presenting the color just a shade off, or by clipping your article into a short introductory sentence. If Amazon is showing your book cover to the world so customers can buy the book, it doesn't make sense to have a vague T&C, that an author might later come back and sue them for "distributing my art content" (i.e., the cover pic) "worldwide"; or sue them because they made a "derivative work" (i.e., included your shared JPEG of the cover on an Amazon page layout). Pinterest, Amazon, and Google lawyers would be careless not to include those protections, since people do sue over spilled cups of coffee, frivolous copyright claims, and the like.
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