Monday, March 26, 2012

hot topic: to pin to not to pin?

A collection of images.

If you’re a follower of IP blogs and Twitter feeds, it will not have escaped your attention that one of the trending topics is the copyright implications of ‘pinning’ images on Pinterest. There doesn’t seem to be much agreement, which could be a bad thing or a good thing. Bad, because we’d all like to know where we stand, right? (all we pinners, that is). But good, because it could mean that a new interpretation of current laws is in the wind - it’s always fun watching established law catch up with current technology - a real tortoise and hare thing. First the law gets a grip, then technology dashes out in some unexpected direction again...

So what’s with Pinterest and copyright? Well, as many blog posts will remind you - here's one, for example  - most images on the internet are NOT in the public domain, and you probably are infringing someone’s copyright if you have a presence on Pinterest. Of course, as the blog post says, you can carefully ensure that every image you pin is either public domain or you have permission...yah, yah - lawyer talk, eh? How many Pinterest users go down this route? Many such comments are directed as cautions to businesses who might be looking to use Pinterest to promote their business. It is true that if there’s commercial advantage involved, copyright owners might have stronger reasons to object to the wholesale flouting of their rights. 

Let’s not belittle the potential problem. For every owner of an image who is thrilled to see it going viral on Pinterest, there is a professional photographer who’s income is dependent upon reimbursement for use of the images they have created. 

Then there’s the boys of the Wild West, the early-adopters, who see Pinterest as the next great marketing opportunity. Here's one  who has instructions for just the right sized graphic to pin up there, and claims to have attracted 14,000+ re-pins with one graphic, which resulted in massive traffic to the client’s site.

There are lawyers who shake their virtual heads and warn that Pinterest is the next Napster - and others  who claim that the hoo-ha is a storm in a teacup.

There’s a lot of comment on whether pinning an image is sufficient to invoke the ‘fair use’ defence in copyright law - this blogger  suggests that Pinterest should change the words ‘describe your pin’ to ‘comment on your pin’ to help bring it within this defence. A truly lawyerly response. 

So we all watch with fascination to see how this plays out. The Pinterest people themselves have provided a bit of code that can be used to prevent pinning - Flickr has provided this for use by people who put their photographs up on that site. Disgruntled copyright owners can have access (in the USA, or equivalents elsewhere)  to the DCMA take-down provisions. 

The most interesting thing of all will be to see how the law evolves to deal with this latest digital communications phenomenon. For example, since it is possible now to add some “no pin” code (just as it is possible to prevent “embedding” from YouTube) - if you put an image on the internet without utilising that freely available protection, could it be argued that you’ve given an implied consent to its free use? 

Then there’s the point, sometimes rising to the surface through all the sound-and-noise, that an image on Pinterest (unlike on Facebook) retains the metadata pointing to its source. If you see an image on Pinterest, you can click through and find the site it came from. That’s the whole point of using Pinterest to drive traffic to websites, the very thing that makes it valuable to potential commercial users. Is Pinterest use then more like making a collection than making a reproduction? There are lobbying efforts out there urging broader interpretations of exceptions to copyright. Expect to hear more on this topic.

There’s certainly an argument that if you’re a commercial image-maker putting your valuable high-quality images out on the web without any sharing-disabling code, you’re really playing in the traffic. 

My favourite find in the last week is a virtual law firm who has joyfully embraced the Pinterest ethic, and has a wonderful selection of Pinterest boards, including lovely office lobbies, a legal book collection, legal ads and an art collection.

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