Pinterest Wants to Sell Your Soul (If You Aren’t a Lawyer and Have One)

Baby in a cooking pot

*Please note that the author has absolutely no reason to believe that Pinterest eats babies. Not even bacon-wrapped babies. But, really, why would someone wrap a baby in bacon? That's just mean. And unsanitary, if it's raw bacon. Which is pretty much the only bacon you can use to wrap things in. What were we talking about again?

Yet another entry in the wave of “OMG Pinterest Wants To Eat Your Baby!*” posts spreading around the net is How You Can Get Sued For Using Pinterest.  This post describes how the Boston Business Journal pulled their boards after realizing that Pinterest could sell content included in Pins.  I suppose the Journal believed that they had all the other rights necessary to post photos on Pinterest to be shared globally but only if Pinterest didn’t make money off of it?  I’m not sure how else to take their position, or the other posts that take issue with Pinterest selling pins.

First, let’s be clear that this is not about the Pinterest referral scheme.  I still think that practice is questionable since the terms of use and privacy policy seem to conflict over the permitted behavior, but ultimately a lawsuit or enough users will force Pinterest to decide how to handle it.  This concern is over the part of Pinterest’s Terms of Use that state the following.  WARNING, Legalese follows.  I’ve highlighted the important part.

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.

In case you can’t follow my selective bolding, here’s the statement with all its ellipses-based glory.  “[Y]ou hereby grant to Cold Brew Labs a…license…to…sell…and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.”  This part of the terms scared the Boston Business Journal so should you be scared too?  Probably not.

Let’s be honest, we have no idea what selling a Pin means.  In all likelihood, Pinterest put the term “sell” in here as a sort of catch-all to cover commercial activity they may take in the future.  It’s a bit odd to find the right to sell included in a license (that’s a rarity since licenses are a transaction designed to avoid being a sale) but Pinterest also knows that they’ll enter into dangerous waters if they start selling content just because someone uploaded it to their site.  Sure, that person under the terms has said that they have all the rights to let Pinterest use it but once Pinterest starts making money off the content they become the Deep Pocket lawsuit target.  Practically speaking, the ability for Pinterest to sell your content may be a business concern depending on what you post, but not because you don’t have the rights.

There’s also an important limitation in the terms that I think the Boston Business Journal missed.  The laundry list of granted rights (yes, we lawyers call them laundry lists…we’re funny, funny people who apparently make lists for everything even our laundry) states that the content can be sold or otherwise exploited “only on, through or by means of [Pinterest].”  So that means they probably don’t have the right to print out your Pin and sell a poster of it.  Or to take all your pictures and captions and turn it into a book.  Or to turn your Board of Awesomeness into a movie starring Bruce Willis as a unicorn-riding cop who travels through time preventing assassinations thanks to a piece of magic bacon.  Because those aren’t covered by the defined terms of Site, Application, or Services.  But, for the record, I would totally see that movie.

The Boston Business Journal is free to make their own decisions, of course.  But I’m not sure why this term scared them.  If they were already putting blueprints, photos, and other content on Pinterest for anyone to see for free then that is far more likely to have an impact on their business than Pinterest itself making money off that content on their site or apps.  Pinterest does not have the right to create a rival website that sells those blueprints, nor would they have the right to print out the photos and sell them as postcards.  There’s a lot of things they can’t do according to the terms so it’s hard to guess what sent the journal running.

My guess is that the journal hadn’t considered the implications of putting all their paid content on a free site.  They wouldn’t be the first publication to run into that issue.  Then they probably decided to go a different direction but blame Pinterest’s terms on the way out.

The smaller part of the blog post actually deals with the title of the post—namely how you can get sued.  But here the blog post misses the point completely.  Here’s what the author says:

In other words, if you upload an image that doesn’t belong to you and Pinterest sells it, you could be sued for copyright infringement.

This is actually a decent statement except for four words: “and Pinterest sells it.”  Pinterest selling your pin, whatever that means, has nothing to do with your infringement of somebody else’s intellectual property.  If you upload a photo that was taken by a professional photographer (not you) then you could be sued for copyright infringement.  If you upload an infographic that squeezes all the text of the entire Hunger Games trilogy into one graphic then you could be sued for copyright infringement.  Pinterest’s activity has no bearing on your infringement except that now the damages might be higher because, in case you didn’t know, there are a lot of people on Pinterest.

I’m not letting Pinterest’s terms off the hook here—I think they do need simplifying and revising (at the very least they should start using the Oxford comma) but that’s probably low on their list of “Things To Do Now That We’ve Exploded In A Good Way.”  But the focus on selling your pins is being misinterpreted and miscommunicated.  You should, of course, only post content you have permission to post.  But beyond that you should not be surprised that Pinterest will, one day, perhaps today, try to make some money off of your using their platform.

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1 Comment

Filed under Commercial Activity, Copyright, Pinterest, Social Marketing, Terms and Conditions

One response to “Pinterest Wants to Sell Your Soul (If You Aren’t a Lawyer and Have One)

  1. Pingback: Getting Pintellectual: What’s New in Pinterest’s New Terms and Conditions | SoMeLaw Thoughts

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