Pinterest - are the new terms better? The Legal View | Social Media ...

There has been a lot of furor over the past few weeks about Pinterest and its terms and conditions.?? The debate crystallized in a blog post by a photographer who removed her pictures on the basis that Pinterest?s terms said it could ?sell? the pictures and claimed permanent ownership of any pictures ?pinned?.? Her blog went viral and prompted Ben Silbermann, the founder of Pinterest to get in touch with her?and ask how the terms could be improved to respect copyright.?

A clever PR stunt or a genuine intention to change?? Well it looks like the latter as early on Saturday morning, notice of the new proposed terms popped into Pinterest users? inboxes.?

So intriguing had this debate become that I was really keen to take a look for myself and check out whether the Pinterest terms scare stories had really been put to bed or whether they were still hiding out in the new terms.?

The email telling us of the new terms said they were an ?update?.? In fact it looks like the Pinterst lawyers went back to the drawing board and started afresh.? The tone is much more ?social-friendly?; it is clear, colloquial and has cut out much of the legal jargon.?? The headings are actually useful, giving good guidance about what it covers: ?Your Content?, ?How long we keep the content?, ?How Pinterest and others can use your content?.?? Instead of the unknown and slightly sinister sounding ?Cold Brew Labs? the terms are with the name we know, Pinterest.?

So far, so good. Now?let?s take a look at the legal nitty gritty:?

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Pinterest no longer claims the right to sell your pictures?
That right. the offending word ?sell? is gone from the new terms altogether.? Other legal rights that they have removed are ?publicly display?, ?publicly perform?, ?transmit?, ?stream?, ?broadcast?, ?access?, ?view? and the all encompassing ?and otherwise exploit?, terms that seemed irrelevant to what Pinterest actually does.

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The new licence seems very specifically tailored to what Pinterest might genuinely need to do with our content to display pictures on the site globally and allow others to re-pin our pictures.

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Pinterest no longer owns my pinned pictures forever?

Correct.? Pinterest has removed the ?perpetual? licence.? In fact even in the current terms (the new terms start as from 6 April), Pinterest did not claim ownership of our pictures. They just kept a licence.? Forever.?

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The new terms are more in line with other social media sites (specifically Facebook, Twitter and Flickr) where, once?you terminate?your account they only keep my content to the extent it isn?t deleted completely for technical reasons (e.g. caches or backups).?

But there is a loophole.? There is a perpetual licence to anyone who re-pins your pictures which means that if?you decide to remove all?your pictures from the site, any re-pins will stay.? So, if my pictures are popular and get re-pinned, you'?ve lost the control and can?t get them back.? In that way it is much like Twitter; deleting a tweet or my account does not remove the tweets?you have sent.?

I think there is a crucial difference in the time-based nature of tweets.? They are very much in the moment.?? In contrast, our pictures are always our pictures, whatever the timeline.? It will be interesting to see how the community reacts to this loss of control.? It should certainly make us all think twice before we pin any pictures we may one day want to remove?

Well, so far, so ? quite good.? What about the other much criticized terms?? Have they gone as well??

I have to indemnify Pinterest for any copyright problems?

Yes ? this one stays. ?In fact is has been extended slightly in terms of legal scope.? In legal terms there is an unlimited indemnity for any losses suffered by Pinterest from our use of the site.?

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In layman?s terms, that means if Pinterest is sued by someone because?you have pinned a picture belonging to someone else (which let?s say they has then been extensively repined by the Pinterest community) Pinterest can demand?you pay all the lawyers? fees and damages.? Ouch!? There is nothing so punishing in the Facebook or Twitter terms.

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However, this is not an unheard of term in social media.? And, again, perhaps this is different because we are focusing on pictures.? If you take a close look at the Flickr (i.e. Yahoo!) terms of use, the indemnity is even more potentially harmful to the user.??You would have to pay them even if they fight the case and they win and the Court finds that my picture does not infringe copyright.? So in theory, you?could have done nothing wrong and still face a huge legal fees bill.? This is due to the deceptively innocent wording of the Flickr indemnity ?for any claim or demand? (emphasis added).

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If I pin a picture of my brand, Pinterest could reproduce this brand picture anywhere?

No.? But Pinterest and any other user could reproduce it within the Pinterest site.? If say, we posted a picture of an eModeration mug (we?re very fond of tea at eModeration Towers), we would have granted a worldwide licence to Pinterest and other users to use that picture featuring our brand anywhere within the Pinterest site.?

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The licence to Pinterest and other users does not allow them to reproduce the brand other than in that particular picture.? Even so, this should give some brands cause for concern when looking to create a presence on Pinterest.?

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If?you do anything other than pin pictures?you have taken,?are you?infringing copyright by using Pinterest?

Potentially, yes.? This hasn?t changed, although the language which describes this liability is much more friendly and in a tone more acceptable to social users.

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Pinterest?s current terms demand a full reassurance from users that they own the rights to pin a picture.? Given that we can add a ?pin it? button to our tool bar and are encouraged to pin from websites, this seemed disingenuous at best.? The impression was that Pinterest was ignoring the reality of the copyright challenge presented by its concept: we can pin content from anywhere (but we are unlikely to have the rights to do that).

Legally the situation has not changed.? Presentationally, it is hugely different.? The emphasis is on personal empowerment and responsibility for us, the users, to check we have the rights to repin.? A link to resources (an FAQ page from San Franciso University) is provided.?

We are still left with the problem that the beauty of Pinterest is we can gather pictures from all over the web in one place to share with others.? But most websites do not grant us the rights to do this.?? It remains a risk and, in my view, the biggest legal challenge to Pinterest?s success.

Pinterest has launched code to allow sites to prevent pinning ? does this help?

In legal terms, no.? Pinterest cannot turn global copyright licensing into an opt-out regime (i.e. site being deemed to have granted a licence if they do not implement the code).?

In practical terms, probably.?? With the availability of this code, the incentive to a site owner to take legal action against Pinterest (which the offending user would be paying for remember) is massively reduced.? They do not have to resort to legal action to stop the infringement; they can just implement the code.

Summary

The new terms are a huge improvement and represent a big step in Pinterest engaging with the legal reality of its concept and listening to the concerns of its community.?

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On the positive side:

• We don?t need to worry about Pinterest selling our pinned pictures;
• Pinterest does not take ownership or a permanent licence for our pictures
• The release of the no pin code reduces the risk of anyone taking legal action against Pinterest (and thus us, the users) for pictures we pin

But there are still some real risk and concerns:

• It is likely that we (and Pinterest) are infringing copyright for much of the content we pin from the web.?
• The indemnity we give to Pinterest is very broad.? If a site owner decides to bring a test case the user is potentially on the hook for paying for that.
• Once our pictures are repinned, we have lost control of them.? Even if we terminate our account, they will stay up there.?? So, make sure you are happy for that to happen before you post any pictures.

Overall, well done Pinterest, but could do better.??? We feel a lot more comfortable for us and our clients to use Pinterest but there is a need for caution about what pictures we all pin.?

By?Rachel Boothroyd, General Counsel at eModeration

?See also eModeration's free eBook., The Complete Guide to Pinterest for Brands, available to download from our website.

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Source: http://socialmediatoday.com/emoderation/480219/pinterest-are-new-terms-better-legal-view

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