Pinterest Copyright Questions and Concerns

Pinterest for Business

The Social Networking Nanny, Lanae, and I co-wrote a blog post over at Lanae’s blog:
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“The last few months have been a whirlwind here at Pinterest. It’s hard to explain how it feels to go from a small group of people working on a virtually unknown website, to a slightly bigger team of people working on a service that millions of people use every day.” (Pinterest spokesperson to CBS’s WCCO)

Isn’t that statement the truth! In a busy, busy world who doesn’t love a fast and easy way to share ideas, recipes, fashion and more…hello Pinterest! It sparked our interest, 12 million of us have flocked to it, and for many of us it became an immediate addiction. And then the “fine print” was made bold to us. … Nobody likes reading the fine print, but interpreting this was scary. Could we possibly be violating people’s Copyrights? … Read more

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What Do Pinterest’s Updated Terms of Service Mean for Business Users?

Pinterest for Business

By now you are probably aware that Pinterest has updated its Terms of Service and Privacy Policy as of March 23, 2012. The changes will be effective April 6, 2012. The site has been sending emails to users informing them of the update and has posted the email regarding the changes to its blog as well.

Before diving into the changes, I want to note that Pinterest has joined what is apparently becoming a trend in the approach to updating the Terms. It has, like Facebook and Google before it, made sure its users have notice of the changes (via email and/or notifications in several places within the site) and an opportunity to decide whether or not they should continue using the site in light of the changes. For over a decade, it has been standard practice for sites reserve the right to make changes without notice, or with only a very small notice at the bottom of the page near the link to the Terms, and bind users to the updated terms merely by visiting the site, whether or not they have viewed the updated terms. As more and more sites make it their standard practice to notify users and give them time to decide whether to accept an updated policy, the courts may change their approach to this topic. It is worth keeping an eye on and considering in choosing how to notify users of policy updates.

Now, moving on to the meat of the changes.

One of the major changes for business users is that it is now one hundred percent clear that Pinterest makes its users responsible for any violation of copyright caused by their re-pins. The Terms specifically state that “It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards” (emphasis added). The disclaimer section also provides that “you agree that we are only acting as a passive conduit for your AND OTHER USERS’ online distribution and publication of your AND THEIR User Content.” In other words, a user cannot simply rely on an assumption that other users have legitimately pinned any content to Pinterest; they need to verify that content is legitimately on the site before re-pinning. (For tips on how to get your business’s content onto Pinterest and assure users that you want them pinning and re-pinning your content, check out my post “Do You Like Free Advertising? Or, How to Make Pinterest Work for Your Business.”)

Pinterest is also making a nod to copyright fair use in its modified Terms; users are now granted a license “to use the Service, including accessing and viewing Pinterest Content, for your personal, noncommercial use to allow you to express yourself, discuss public issues, report on issues of public concern, engage in parody and as expressly permitted by the features of the Service.” Pinterest has likely added this to its Terms to bolster its claims that it is not encouraging its users to violate copyright law; it is only providing a forum for them to make fair use of others’ images. Pinterest does not want to be the next Napster. Business will want to bear in mind how fair use is different from other uses when pinning or re-pinning content.

Unfortunately, the updated Terms have some problems. For example, the license granted by the new Terms is limited to “personal, non-commercial use” in Section 2(b); but in Section 4(b), business users are granted the right to create an account so long as the individual creating the account has the authority to create it and bind the business to the Terms of Service. It is not clear whether pinning a business’s own content along with some commentary or an invitation to interact, one of the more logical ways for businesses to use the site, could be considered “commercial.” The original Terms of Service had similar terms about non-commercial use, though, and web searches did not turn up any Pinterest actions against business users.

Pinterest has also added a binding arbitration clause at Section 11, along with a limitation on class-action law suits. Whether a company is comfortable submitting to binding arbitration by using the site is largely a business decision but should definitely be brought to the attention of the company’s lawyer.

Also potentially problematic from the standpoint of the business user is that the Terms, including all rights and licenses assigned by them, cannot be transferred by users. One of those rights is the right to have and use an account. At least for the moment, there is only one account type, and an account opened by any individual on behalf of a company appears to be owned jointly by the company and the individual so far as Pinterest’s Terms are concerned. Businesses will want to make sure that their employment policies or agreements are clear on the subject of who owns social media accounts (although this is a best practice in general).

What do you think? Will your business begin or continue using Pinterest in light of these changes?

Do You Like Free Advertising? Or, How to Make Pinterest Work for Your Business

Pinterest for Business

The hot new social site is Pinterest, alternately referred to as a threat to Facebook and Twitter and the biggest threat to copyright since Napster. I hardly need link it, as by now you have surely seen the blog post by distraught attorney-and-photographer Kirsten Kowalski, who deleted her account after reading the site’s Terms of Service.

I won’t weigh in on the controversy over Kowalski’s understanding of Pinterest’s Terms of Service, or how they compare to other sites’ terms. It hardly matters; she has ignited the public interest in, and fear of, the potential for violating copyright by using the site. The real question is, what will you, as a business owner and content creator, do about it?

Pinterest, like so many other social media sites, is great for small businesses. It is yet another method of getting people—the people who make the purchasing decisions—interested in and looking at your products. You should be especially interested in the site if your products fall within one of the major categories (Architecture, Art, Cars & Motorcycles, Design, DIY & Crafts, Education, Film, Music & Books, Fitness, Food & Drink, Gardening, Geek, Hair & Beauty, History, Holidays, Home Décor, Humor, Kids, My Life, Women’s Apparel, Men’s Apparel, Outdoors, People, Pets, Photography, Print & Posters, Products, Science & Nature, Sports, Technology, Travel & Places, and Wedding & Events). If your product falls into the Other category, the site may be slightly less useful to you, but it is still an avenue for free advertising. If you, like many businesses, are less concerned about protecting the copyright in the photographs of your products than you are about selling the products themselves, Pinterest is probably a great move.

I, however, am not a marketing expert, so I cannot tell you how best to use the site. I’ll leave that to the experts. What I do know is that if you want people to “pin” your products, you may have to reassure them that you do not intend to chase them down a la RIAA. To ensure that you aren’t sending mixed signals:

  • Make sure that your own site’s Terms of Use are not preventing people from sharing your content. Your linking policy should be clearly link-friendly, within reason. You do not want people linking your content in a way that implies a relationship that does not exist, for example, but your policy should clearly allow a Pinterest pin with a note about how much the user loves your new software product, clothing line, or music album.
  • Join Pinterest and pin as many of your own products as you have time to pin, in as exciting and attractive a format as possible. This will reassure people that you do not mind pinning, and give them the opportunity to re-pin from an unquestionably legitimate source.
  • Put a link to your Pinterest page on your company’s website. Again, this will reassure people that you are fine with social sharing.
  • Make use of Pinterest’s “Goodies” and put a “Pin It!” button on your company website.

If you are not sure whether your website’s current Terms of Use are pin-friendly, but want to make sure to get it right, feel free to contact me for help.

Update March 24, 2012: Pinterest has updated its site Terms of Service and Privacy Policy. The new documents will be effective as of April 12, 2012. These changes to not affect the information provided in this blog post, as Pinterest cannot grant users a license to your business’s content; only your business can do that.

Pinterest logo courtesy of the “Goodies” section on Pinterest. The Pinterest logo was designed by Michael Deal and Juan Carlos Pagan.

What is the Creative Commons and How Does It Interact with Fair Use?

Intellectual Property - Copyright

The Creative Commons is a project initiated in part by professors at my alma mater, Duke Law, through their work at the Center for the Public Domain. The Creative Commons says that it “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”

What exactly does that mean? Well, it means that the Creative Commons project provides legal documents to average people who want to be able to share their content on the web and allow others to use it. There are several options for how to allow others to use your content. You can allow others to use your work commercially (for profit) or non-commercially (for display). You can allow others to make changes to your work, make changes only if they attribute the original to you, or not to make changes.

Who would use a Creative Commons license, and why? It is a great option for creative works like web comics, where the goal is often to get as many people sharing as possible. It is a great option for some amateur or new-to-the-scene artists who care more about seeing their work gain recognition than about making money on the work at the moment. It is a great option for a non-profit or advocacy organization that wants to have its materials distributed by its members with clarity about the expectations surrounding that distribution. It is not a great option if you want to ensure that you have complete control over the use and distribution of something you made.

How does the Creative Commons relate to fair use? Fair use is use of copyrighted material that does not violate copyright infringement laws. Fair use is defined by the Copyright Act’s Section 107. Section 107 states that for certain purposes, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” copying and making use of other rights granted to copyright holders do not constitute infringement. The Creative Commons licensing system expands the ways in which a particular work can be used without needing specific permission from the owner of the work, to make use and copying of particular works more compatible with the ways in which the Internet allows sharing.

Do you think you might be a good candidate for a Creative Commons license? Want something similar, but don’t think Creative Commons is for you? Feel free to contact me for help!

How Do I Protect My Idea? Part IV: Trade Secrets

Internet Law - Trade Secret - Protect My Idea

You have a brilliant idea. With all your might, you are making it grow. You nurture it with your time, your energy, your hopes, your sweat, your dollars and your dreams.

This idea? Its time has arrived.

When you have put so much creativity, time and energy into something, you want to know that it is as well-protected as possible. My job as your attorney is to help you with the “how.” Sometimes, you know what kind of protection will work best for your idea. Sometimes, you don’t, or you aren’t sure which of your options is the best. This four-part series is a brief introduction to the various types of intellectual property. Today’s topic: trade secrets.

Trade secrets are often ignored in the excitement surrounding the federally registrable types of intellectual property, but this is a mistake. Trade secrets can be among the more versatile types of protection, and are the only way to protect ideas, as opposed to the expression or physical embodiment of those ideas. Trade secrets protect:

Information and/or ideas that: 1) have actual or potential economic value if they are kept secret; 2) cannot be easily ascertained by others who are using proper means; 3) are minimally novel; and 4) are the subject of reasonable efforts to maintain them as secret.

Trade secrets are an excellent choice for protecting an invention or discovery that does not meet the rigorous novelty standards of patent law, so long as it is not easy to reverse-engineer. They are also ideal for certain types of software, tests, recipes, and other intellectual property that is possible to keep secret.

How does one obtain trademark protection? It is simple enough in theory: all you need to do is keep the material secret using reasonable efforts. However, what constitutes reasonable efforts varies depending on the nature of the secret and the size of the company. In general, protection involves legal safeguards such as nondisclosure agreements and physical safeguards such as locks. Maintenance is also facially straightforward: continue to keep the material secret, and take action against anyone who threatens to reveal it (e.g., get an injunction). You should consult with an attorney about how best to protect and maintain your trade secrets and what to include in your nondisclosure agreement.

The greatest benefit of trade secret protection is that it is the only way to protect certain types of intellectual property, such as ideas or inventions that are not sufficiently novel to obtain patent protection. Trade secret protection can be combined with copyright or patent protection (at least until the point of patent registration). Trade secrets can also last indefinitely; the recipe for Coca-Cola, for example, has been maintained as a trade secret for over one hundred years.

The greatest drawback of trade secrets is that they are destroyed by being revealed. There are some remedies for this, but an unhappy former employee has the potential to do a great deal of damage to a company whose most important intellectual property is protected by trade secrets.

Well-known intellectual property protected as a trade secret includes the formula for Coca-Cola and the recipe for Thomas English Muffins’ “nooks and crannies.”