Pinterest updates the terms of service, but it is still a liability

One of the reasons Social Media is so popular and so loved is because users and companies are rewarded for broadcasting and sharing interesting and relevant content. It also works because the content owners encourage and welcome shares and links to their work because they get higher ranks on search engines like Google. Content owners also get more users to read and share their information, which results in more web traffic, additional ad revenue and hopefully more sales. But, Pinterest is different from all other Social Media networks because it references ownership rights to user posted\shared content. Some have dubbed Pinterest the next Napster; because of its explosive growth and the large volume of sharing and re-sharing of protected content not owned by the person or company who shared it.

The unique problem with Pinterest is that they require and assume that the content posted by its users is owned or licensed by the poster. No other Social site or platform makes that demand on its user community; most platforms encourage links and citations back to the original content but don’t take ownership of the linked material. Further complicating matters, the original Pinterest Terms of Service granted Pinterest the right to sell any content posted by the user community—regardless of who actually owned the content. If it was posted, it was fair game. The Pinterest Terms of Service stated:

“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.”

So, by posting or re-pinning anything not expressly owned on Pinterest, users were granting the site the right to use and sell the work. The liability for users in that one statement was huge; which is probably why Pinterest took it out of their updated TOS that goes into effect in April 2012. Pinterest released the statement on March 24, 2012, “Selling content was never our intention and we removed this from our updated Terms.”

Music and movies have gotten the lion’s share of attention when it comes to illegally sharing, posting or distributing unlicensed content on the Internet. Photos, artwork and other images (the core content on Pinterest) have typically not caused much of a stir. The Digital Millennium Copyright Act or DMCA serves to protect content owners, but gives violators an opportunity to right the wrong without any further action or penalty. Pinterest TOS complies with DMCA and has several tools in place for content owners to remove licensed content posted without permission; but the liability still rests with the users. Some content sites like Flickr.com have taken it a step further and completely blocked the linking, posting or pinning of licensed content on Pinterest. Getty Images and other stock photo houses are rumored to be considering similar measures.

The updated Pinterest Terms of Service, which go into effect on April 6, 2012, tighten up the site’s rights and remove the idea of “selling” user content. But, users are still not indemnified by posting protected content they do not own. They can still get into trouble with DMCA and the license holder by granting a sublicense to Pinterest to the protected content. The difference between selling and granting a sublicense may be a textual nuance that could still bring unwanted liability to users of the Pinterest site. The updated Terms of Service state:

“Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users.

Users of Pinterest should tread carefully. The explosive growth means there is a lot of opportunity to connect with potential customers or find a new network of followers. But it is critical that all content posted is 100% owned free and clear by the account doing the posting. Re-sharing or re-pinning other user content could be a liability. Also, corporate users need to update Social Media policies to include the specific nuances of Pinterest terms of service; employees who use the site must only share company owned content and the content will remain the property of the company even if the employee leaves. You wouldn’t want to create a new liability by former employees suing companies for posting Pinterest content that they claim to own after their employment has ended. Messy indeed.