Can Content Owners Pin Infringement on Pinterest?

Can Content Owners Pin Infringement on Pinterest?

 

 

"Pinterest is a $7.7 Billion Company." (quoted from Debra Borchardt, "Pinterest Is a $7.7 Billion Company," Forbes, April 16, 2012, accessed April 17, 2012, http://onforb.es/IQd1UO).

Thus spake Forbes, based on Pinterest's large and growing usage numbers. Forbes went on to say:

According to the scoreboard from Experian Hitwise data from March 2012, Pinterest is the third most popular social media platform in the United States. It is running close behind Twitter in the number of total visits. Facebook is the big beast at seven billion total visits, Twitter while very far behind, is logging 182 million visits. Pinterest is next with 104 million and gaining quickly.

Last August, Time named Pinterest, still in its infancy, one of the 50 best websites of 2011. (http://www.time.com/time/specials/packages/article/0,28804,2087815_2088159_2088155,00.html visited on April 17, 2012).

Pinterest describes itself as "a Virtual Pinboard. Pinterest lets you organize and share all the beautiful things you find on the web. People use pinboards to plan their weddings, decorate their homes, and organize their favorite recipes. Best of all, you can browse pinboards created by other people. Browsing pinboards is a fun way to discover new things and get inspiration from people who share your interests." (http://pinterest.com/about/ visited on April 17, 2102). It operates by allowing users to upload visual images and others to browse them-in short, file sharing. In fact, a common description of Pinterest, though one no longer on its site, is "a content sharing service." Visual images may or may not be worth a thousand words, or possess charms to sooth the savage breast, but they are eligible for copyright protection, and it appears for a cursory perusal of the Pinterest website that many of the "pinned" images were not original to the pinners. How does this phenomenally successful file sharing site navigate third parties intellectual property rights in a post-Grokster (MGM Studios, Inc. v. Grokster, Ltd, 545 U.S. 913 (2005)) [enhanced version available to lexis.com subscribers], post-YouTube (Viacom Int'l v. YouTube, Inc., 2012 U.S. App. LEXIS 6909 (2d Cir. N.Y. Apr. 5, 2012) [enhanced version available to lexis.com subscribers] world? Is Pinterest's harbor safe in the digital millennium?

Grokster held that "one who distributes a [product] with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Grokster, 545 U.S. at 919.  

Pinterest's website states that "Pinterest lets you organize and share all the beautiful things you find on the web,"(emphasis supplied) although the following statement appears on a linked page: "Pinterest ('Pinterest') respects the intellectual property rights of others and expects its users to do the same. It is Pinterest's policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Pinterest will respond expeditiously to claims of copyright infringement committed using the Pinterest website (the "Site") that are reported to Pinterest's Designated Copyright Agent, identified in the sample notice below." (http://pinterest.com/about/copyright/ visited on April 17, 2012).

Like Grokster, Pinterest has not employed filtering technology to diminish infringing activity and employs a business model in which "the commercial sense of their enterprise turns on high-volume use." Grokster, 545 U.S. at 940. Unlike Grokster, Pinterest does not target known infringers or provide software to enable infringement. While Grokster issues are by no means irrelevant to Pinterest's legal position, Grokster concerned infringement-enabling software, not an ISP, and thus has only tangential relevance to the construction of section 512, serving more "To swell a progress, start a scene or two," (T.S. Eliot, The Love Song of J. Alfred Prufrock), the more germane issues arising under the safe harbor provisions of the Digital Millennium Copyright Act (17 U.S.C. §512) as recently construed by the Second Circuit in Viacom Int'l v. YouTube. To the extent that section 512 does not apply, a challenge to the Pinterest model could mean a reprise for Netcom [Religious Technology Center v. Netcom Online Communications Services, Inc., 907 F. Supp. 1361 (N.  D. Cal. 1995) [enhanced version available to lexis.com subscribers], particularly as to the assertion of a fair use defense.

Section 512(c)(1) provides that "A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider-

(A)

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement..., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

Pinterest has clearly attempted to bring itself within the section 512(c) safe harbor, and its position is comparable to that of Veoh Networks', blessed by the Ninth Circuit in UMG Recording, Inc. v. Veoh Networks, Inc., 667 F. 3d 1022 (9th Cir. 2011) [enhanced version available to lexis.com subscribers]. The Veoh Court ruled that "[m]erely hosting a category of copyrightable content...with the general knowledge that one's services could be used to share infringing material is insufficient to meet the actual knowledge requirement under §512(c)(1)(A)(1). We reach the same conclusion with regard to the §512(c)(1)(A)(ii) inquiry [the red flag test] as to whether a service provider 'is aware of facts or circumstances from which infringing activity is apparent [667 F. 3d at 1038]....[A] service provider must be aware of specific infringing material to have the ability to control the infringing material within the meaning of §512(c)(1)(B). Only then would its failure to exercise its ability to control deny it a safe harbor." 667 F. 3d at 1042 (emphasis supplied).

The potential infringement calculus became considerably more interesting on April 5, when the Second Circuit issued its opinion in Viacom, differently construing the section 512(c) safe harbor requirements. The Court first took up the issue (a non-issue, according to the Veoh court) of the interplay between the actual knowledge requirement and the red flag test: "The difference between actual and red flag knowledge is thus specific and generalized knowledge, but instead between a subjective and objective standard. In other words, the actual knowledge provision turns on whether the provider actually or 'subjectively' knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement 'objectively' obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the §512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement." Viacom, 2012 U.S. App. LEXIS at 28. The Court then added another layer of complexity, importing the common law willful blindness doctrine to the DMCA safe harbor: "DMCA safe harbor protection cannot be conditioned on affirmative monitoring by a service provider. For that reason, §512(m) is incompatible with a broad common law duty to monitor or otherwise seek out infringing activity based on general awareness that infringement may be occurring. That fact does not, however, dispose of the abrogation inquiry [i.e.,  whether the common law doctrine was abrogated by the DMCA]; as previously noted, willful blindness cannot be defined as an affirmative duty to monitor. See [United States v.] Aina-Marshall, 336 F. 3d [167] at 170 [2d Circuit 2003] [enhanced version available to lexis.com subscribers] (holding that a person is 'willfully blind' where he 'was aware of a high probability of the fact in dispute and consciously avoided confirming that fact'). Because the statute does not 'speak[] directly to the willful blindness doctrine, §512(m) limits-but does not abrogate-the doctrine. Accordingly, we hold that the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific circumstances of infringement under the DMCA [2012 U.S. App. LEXIS at 39]....Accordingly, we conclude that the 'right and ability to control' infringing activity under §512(c)(1)(B) 'requires something more [emphasis supplied] than the ability to remove or block access to materials posted on a service provider's website'....The remaining-and more difficult-question is how to define the 'something more' that is required." 2012 U.S. App. LEXIS at 47. Unfortunately for people who have to plan how to run a business, that remaining-and more difficult-question was remanded to the District Court for an answer. Perhaps the test is simply whether the alleged infringer had specific knowledge of, and disregarded, a pattern of infringement encompassing the specific act at issue, even if it did not possess specific knowledge of the individual act of infringement as the Veoh court would require.

The issue of Pinterest's knowledge, awareness or lack thereof is also colored  by the fair use defense-not merely the somewhat shopworn Perfect 10 rule (Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9th Circuit 2007) [enhanced version available to lexis.com subscribers]; Kelly v. Arriba Soft Corporation, 280 F. 3d 934 (9th Cir. 2002) [enhanced version available to lexis.com subscribers])-but the rather different and more interesting ones: is the way images are "pinned" on the site sufficiently transformative, and the effect of the use upon the potential market for, or value of, copyrighted works pinned on the site sufficiently limited to tip the fourth fair use factor in favor of Pinterest? The Netcom decision may well provide useful guidance on those issues. See Netcom, 907 F. Supp. at 1378-1382.

The difference between the Veoh and Viacom standards implicates significant economic interests, not only those of Pinterest and its investors and its growing collection of commercial relationships. Facebook, having acquired Instagram for a billion dollars, is no doubt studying Pinterest's situation with more than spectatorial interests, as well as a thousand techies in a thousand garages racing to develop the next generation, killer photo sharing app. For copyright lawyers, it is reassurance that the Golan decision (Golan v. Holder, 132 S. Ct. 873; 2012 U.S. LEXIS 907 [enhanced version available to lexis.com subscribers]) and the defeat of SOPA do not represent the end of history, and, at least until the remaining-and more difficult-questions are resolved, copyright law will retain its seat at the high stakes table.

....

Lexis.com subscribers can explore/search Copyright Law resources on Lexis.com or access any of these Mathew Bender Copyright Law publications:

Non-subscribers can purchase Copyright Law treatises/resources and Mathew Bender publications from the LexisNexis Bookstore  

For more information about LexisNexis products and solutions connect with us through our corporate site.

Comments

Anonymous
Anonymous
  • 04-30-2012

Pinterest does provide its users with software to enable copyright infringement. It's called the pinmarklet - a one-click copyright infringement tool.

Anonymous
Anonymous
  • 04-30-2012

They need to implement an image “fingerprinting” scheme like Youtube does with video and sound. Once an image is taken down, nobody could pin the same image again even if it was resized or cropped. They should allow photographers to enter their photos’ fingerprints in the database before infringement occurs. Make a desktop or web application. Have it resize large photos before uploading to server. Server processes the photos and keeps their fingerprint in its database. Server throws away the photos and never uses them afterwards. Set the system up not to be extremely strict on matches and they’d still stop most of them. They could have a human review false positives before they showed on the site. It’s cheap to hire labor overseas to do tasks like that.