Pinterest – “Do I need to take down my account?”

First off, this article is not focused on Pinterest or any other social networking site in particular, rather in light of the recent commentaries and press associated with the Pinterest Terms of Use, this seems like a good time to bring to light some of the issues around user content posted on social network sites in general.
As is the case with many social networking or image sharing sites, the operators of the site/app/service (we will call them “Operators” for now) understandably do not want to take the responsibility for material posted by the users. Like anyone, the Operators want to minimize their risk – this is not to say that all sites are reasonable in how they approach the issue of user posted content, and that is what deserves some commentary.
Because various legislation, particularly in Canada does not do a very good job of addressing the current reality of intellectual property uses (permitted and restricted). It would not necessarily be off base to say that in the present social network driven society posting an image is akin to telling a friend about an event or showing them a picture during a conversation. The law does not take this view yet, and because of this, Operators need to protect themselves to perhaps a higher degree than what would be practically expected. But again, care has to be taken to understand the extent and implications of these protective measures.
So what is the average Operator concerned with? Operators don’t necessarily have control over what is being posted and because the actual act of posting constitutes a copyright infringement (reproducing the content), the owner of the original content could come after the Operator claiming a breach of the content owner’s rights. So the Operator wants to protect itself from this. Where does an operator find this protection? One solution could be insurance, but, often insurance will not cover user posted materials, or make it too expensive to be a practical solution. Another mode of protection would be constant monitoring, which is not only time consuming, but also can be insufficient as while you can fairly readily identify a clip from the latest blockbuster film, distinguishing between a photograph taken by a user and one taken by an recreational or professional photographer is not always possible. For this reason, Operators ask users to agree to only post materials they have the right to post, and if they do something contravening their agreement, they take responsibility for it.
Unfortunately users are not always made clearly aware of what they are agreeing to – yes, reading those Terms of Use/Service can be a real drag, and well who reads every word of them anyways? I have to confess that I have encountered Terms so complicated and long that I couldn’t get through them in over an hour – my next post will discuss the issue of complicated Terms of Use/Service.
Now back to what the user is faced with when the Operator presents them with the Terms of Use! What is the key purpose of social networking sites – to share things you think are cool, unique, or otherwise comment worthy. Is it reasonable to think that your “sharing” or “liking” or “pinning” something is actually a benefit to the content owner? Most often it probably is, but, the fact of the matter is that it doesn’t even necessarily matter if there is an actual or perceived benefit to the use. The most frequent question is “did the user have the right to make that use of the property?” Unfortunately the answer is not frequently yes if you are sharing someone else’s content (be it an image, a sound bite, a picture of a work of art, or a combination of any of these). Shouldn’t a user be permitted to express their opinions to others as to what they like and don’t like? Absolutely! Isn’t posting a picture I like doing the same thing as telling someone that I like it? Nope! While directing someone to the website, store, or gallery of the content owner can be acceptable, reproducing the content in an image or audio file accessible through another website is not necessarily a permitted use without having the appropriate permission. This is why an Operator asks that the users not only guarantee that they have the right to use the material, and allow the Operator to reproduce material, combine it with other material, modify the material, etc… and if the user posts material without the right, then the Operator asks to be protected by the user for any claims/damages.
So we have covered the views of the average user and operator, what goes beyond that? Well some social networks want permission to use the posts other than simply for the purposes the user has intended (i.e. sharing with fellow users). Some sites want to be able to use the posts in advertising for the site or services. Whether this is type of use is reasonably contemplated by the user is questionable. Other sites actually take the right to make further commercial use of posts, while I am not aware of any such use to date, some of the Terms of Use/Service would allow the operator to actually sell images posted on the website. It is quite unlikely that the average user would expect they are giving this type of right to the Operator. So this is where knowing and understanding what the Terms of Use/Service have you agreeing to is important.
Until legislation in various countries address the new reality of sharing, users do in fact have to pay attention to what they are agreeing to… well… maybe as long as it’s reasonable… maybe? The next post will deal with this question.

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