Pinterest: Why they shouldn't change their terms

Recently I've been seeing this floating around on Pinterest, coming from a blog post on knoed.com about the Pinterest terms that are scaring many of its users away. Well, have no fear.

I, like the writer of the blog post (Kyle), am no lawyer. I'm just a humble Etsy business owner who has taken a couple "legal speak" classes here and there. But I would like to share with you my views on the Pinterest terms issue and I hope that you will take them into consideration as well when deciding what to do. This is kind of long, because, quite honestly,  I see a lot of reasons to not worry about it. But please read.

Kyle, says that most people are falling into one of three categories: "1) scared to use their account, or 2) delete their account completely, or 3) continue using it and think nothing bad will happen." But I’m actually more of a 4) continue using it while making sure to simply follow the rules.

The very first thing that is pointed out is the Terms of use state that: 

"You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms"

I'm actually surprised that this made it as one the "scary" things about Pinterest. This part can be boiled down to: "If you don't own it, don't post it, unless you have permission." Which is a totally understandable policy and completely right. Though, I can see how this can sound very scary. According the Pinterest's Terms of Use "'Member Content' means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services."

Which basically, as I interpret it, adds up to all new content. Content that you pin from another site to Pinterest is Member Content. Content that you repin should not, under this definition, be considered as "Member Content that you make available through the site..."

You should never post, publish, submit, or any other synonym of upload images or other content on any site that you don't own or have permission to post because nearly every site on the web has this same policy in their terms of use:

Google’s Terms of Service (under “Using our Services” Fourth Paragraph, First line) Note that Google’s Terms of Service apply to all websites owned by Google including Blogspot
 “Our Services display some content that is not Google’s. This content is the sole responsibility of the entity that makes it available.” Facebook’s Terms (under Section 2 Sharing Your Content and Information, first line)
“You own all of the content and information you post on Facebook” Yahoo! Services Terms (under Section 6 Member Conduct) Note that Yahoo! Services include all websites owned by Yahoo! Including Flicker
“You agree to not use the Yahoo! Services to: e. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements)”

The list could go on forever…

So Pinterest isn’t doing anything different than any other social media site. And, it can be argued that any site that adds a "Pin it" button to their web pages is giving you permission to pin the images on those pages.

The second issue of concern was that Pinterest is able to “sell” anything we pin. There are two reasons why this policy does not concern me.

Reason 1

Pinterest has never, and has yet to say (as far as I could find) that they plan to sell anything we pin. That is not how Pinterest makes their money. In fact, right now it doesn’t really make any money. Under “Getting Started” Pinterest answer’s the how-do-they-make-money? question with this: 

“Right now, we are focused on growing Pinterest and making it more valuable. To fund these efforts, we have taken outside investment from entrepreneurs and venture capitalists. In the past, we’ve tested a few different approaches to making money such as affiliate links. We might also try adding advertisements, but we haven’t done this yet.
 Even though making money isn’t our top priority right now, it is a long term goal. After all, we want Pinterest to be here to stay!”

Now I understand if this isn’t proof enough for you so…

Reason 2

The entire section reads: 

“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.”

This means that they can only sell through the Pinterest sit, so until I see a Pinterest Image Store I’m going to feel safe pinning the content that I own or have permission to use.

Ok, now the third reason is about the legal fees. It states that

“You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”

 It is important to note that this only applies if/when you upload an image or video that you do not own to Pinterest, the actual owner sees it and does not want it to be there, and they decide to sue Pinterest over it. This is the only way I can see Pinterest getting legal fees over content that you uploaded.

Now, I can think of some reasons as to why this scenario is unlikely to happen but first I should point out that, once again, most social media sites have this very same “Indemnify” policy in their terms.

Indemnify - to provide somebody with protection, especially financial protection, against possible loss, damage, or liability

Google’s Terms of Service (under “Business Uses of Our Services”)
“If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Google and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.” Facebook’s Terms (under section 15 Disputes)
“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.” Yahoo! Services Terms (under Section 11 Indemnity)
“You agree to indemnify and hold Yahoo! and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Yahoo! Services, your use of the Yahoo! Services, your connection to the Yahoo! Services, your violation of the TOS, or your violation of any rights of another.”

Now, I’m no lawyer, but I know quite a bit about copyright law, and I can think of a few reasons why it is unlikely that you will need to pay legal fees. I’m going to pick a part example that Kyle gave at the end of his blog (no offense Kyle, it is just faster than coming up with my own). The example goes:

1.     You pin a picture of a cat without permission.
2.     Pinterest sells it to ABC Marketing.
3.     ABC Marketing prints it on kitty litter boxes.
4.     Cat picture owner sees kitty litter box in store and calls lawyer.
5.     Lawyer calls Pinterest.
6.     Pinterest calls you.
7.     Bad things happen.

Ok my problem with number 1 – you broke the law by pinning that picture. So in all fairness you should be end up getting punished (but I doubt you will).

Number 2 – As we have said, Pinterest doesn’t make money at all really right now, so I doubt that it would sell your stolen image to ABC.

Number 4a – The lawyer would then ask if the owner had registered the image with the U.S. Copyright office. If they did not, the lawyer would say that they can’t help them because, though they technically own the image upon creation, the defendant is innocent until proven guilty and a U.S. copyright is the only way to prove in a court of law that the owner was indeed the owner.

Number 4b – The owner does have the U.S. Copyright in which case the lawyer would call ABC who would say that they can’t be touched (i.e. no money for the owner) and the lawyer will…

Number 5 – Contact Pinterest who, according to Pinterest’s Copyright agreement, will pending review of the complaint…

Number 6 – Notify you, the original submitter of the image that Pinterest is…

Number 7 – Removing image. That’s it.

The image owner will then sadly turn and walk away knowing that they just wasted a ton of money on a lawyer and got nothing in return. The only way for the owner to get money, and for Pinterest to lay its legal fees upon you, is if you file a counter-claim stating the you do own the image. Then the owner can notify you and Pinterest that they are seeking a court order to remove the image which will have legal and financial consequences for you.

But of course, that is only if it even gets that far. Like I said, it is unlikely the image would be sold, or that the original owner would want the image off the site, (or that you would claim a stolen image as your own). And if you follow the rules, and not upload new content that you don’t own or have permission to use, none of this will matter at all.

Yes, it sucks that some - most - didn't realize this before, but deleting your account, not using it, and/or demanding that Pinterest changes their policies, ones that every other website we use also has, is really taking it overboard. We can’t blame Pinterest, or their policies, for our mistake. We agreed that we read them when we signed up and if we didn’t read them and pinned illegally, well that is still our fault.

If you speed, get pulled over, and the officer asks you if you knew how fast you were going, do you think it is right for him to not write you a ticket if you answer “no.”?

So please guys, breathe easy, Pinterest is fun, it isn’t out to get you, it just needs to protect itself. 

And stop pinning without permission.

Thanks for listening, and if you have another view on this please post it in the comments, but please be respectful.