I wrote the article below for Temple Law’s student newspaper, Prima Facie. While my views on the topic of copyright liability in the modern Internet’s “sharing economy” continue to evolve, I haven’t made any edits to the version that ran in Prima’s April issue. This is a long post, but I would welcome any feedback, including criticism as long as it’s constructive. I also include a postscript at the bottom mentioning a recent development that may affect the relevant legal landscape.
Fair use doctrine is a great thing. Its allows limited use of copyrighted works and consists of four factors. Those factors include the purpose and character of the use, the nature of the work used, the amount used relative to the whole work, and the effect of the use upon the potential market for the work. These considerations, developed at common law and now included in the Copyright Act at 17 USC § 107, can be powerful tools for art, education, and other endeavors. But they are also widely misunderstood. Copyright law and fair use are in many ways more important than ever.
Ours is an increasingly networked world, marked by everyday activities like sharing things on Facebook and posting things to blogs. The rise of social engagement and the sharing economy has been so meteoric as to pull even the enterprise into its gravitational field. The largest companies in the world are now active on Twitter, and even the late Steve Jobs made his Apple, Inc. email address publicly known, sometimes even sending personal replies to complete strangers.
This is an exciting development, and harbors many of the hallmarks of what early pioneers of the public internet might call “success.” And they would be right. But the internet is a tool, and like any tool, it is only as good or as evil as the people who use it. The internet is used to spread child pornography, to pirate movies and music, and to steal massive amounts of credit card and other sensitive private information. However, somewhere between the glorious interconnection that let frustrated Apple users get the low-down from Mr. Jobs himself, and the internet’s criminal underground, there are more pedestrian, though no less important, issues for us to face.
Issues like Pinterest.com. Well, Pinterest isn’t the issue, the issue is still copyright law and the confusion it often causes when it comes to the internet. Legislation like 1998’s Digital Millennium Copyright Act tries to minimize the liability of service providers for the digital wrongs committed by their users. But those laws don’t (and probably shouldn’t) take similar steps to relieve the users themselves of liability for things like copyright infringement. And therein lies the complication for Pinterest.
The invite-only image sharing site had 11.7 million unique visitors in January 2012, according to web metrics firm comScore. Users keep an eye out for interesting or beautiful images while they’re shopping, reading news, or otherwise surfing the web. When they find something worth bookmarking, they “pin” it, building “boards” based on different topics. Earlier this year, attorney and photographer Kirsten Kowalski wrote a blog post about her misgivings: it looked to her like Pinterest users were engaging in copyright infringement on a scale never before seen. Pinterest, the internet seemed to say in unison, has a very big copyright problem.
Now, to be clear, it’s not really Pinterest’s copyright problem. It’s Pinterest’s users copyright problem, since the DMCA and a well-worded indemnification clause in their terms of service probably get Pinterest themselves off the hook. But the problem with Kowalski’s post, and with the press and viral internet attention it got, is that the “Pinterest problem” is absolutely not on a scale never before seen. This is, in fact, how the internet works. The compliance with the DMCA and solid indemnification clauses keep companies out of hot copyright water, but users are infringing at an astounding daily rate.
The popular blogging service Tumblr gets around twelve billion monthly pageviews. Just Google “tumblr star wars” to get a feel for how much user infringement is going on over there. Sections 9 and 10 of Tumblr’s terms of service give them the same indemnity from claims and judgments related to use of the service that Pinterest demands. That’s because Tumblr, Facebook, and others have been around for years, doing exactly what Pinterest does: enabling (and often profiting, directly or indirectly, from) infringement. Publishers often let it go because the traffic and mindshare they derive from this rampant sharing is more valuable to them than the hunt-and-peck game of suing individual infringers. In reality, users agree to assume massive liability in return for the use of myriad blogging services every day, and they have been for a very, very long time.
Pinterest has developed a snippet of website code they refer to as a “nopin” tag that copyright owners can include on their own websites to block Pinterest users from displaying their content via Pinterest. It’s a gesture of goodwill from Pinterest to rights holders, and popular photo sharing site Flickr has made the “nopin” tag an option for its own copyright-holding users. But there’s a better way to empower users to share than mere reliance on the continued laissez-faire legal strategies of publishers and ad hoc website tags.
This brings us back to fair use, the doctrine mentioned at the beginning of this article. Many misconstrue fair use as a right to use someone else’s work regardless of copyright. That’s not what it is at all, though. It is an affirmative defense, only marshaled when a defendant essentially admits to infringing a §106 right. You admit the infringement, but then assert a fair use defense. Under current law, fair use never “excuses” or “permits” infringement ex ante.
But maybe it should.
Maybe copyright law should be modified to make fair use an a priori right of the public to use, with certain limitations and restrictions, the copyrighted works of others. That doesn’t mean that Pinterest users would be off the hook, and commercial companies running their own Pinterest boards will always be more likely to draw negative attention from rights holders in copyright as well as trademark and “use of likeness” issues. Users are required to comply with current law.
But fair use as a right instead of an affirmative defense would reduce the chilling effect overbroad copyright law sometimes has, and would facilitate the growth of the sharing economy that has come to define the modern internet.
Postscript: Porn publisher Perfect 10 has sued Tumblr over the many copies of its copyrighted photos the blogging service allegedly stores on its servers. Note that they’re not suing Pinterest, despite its recent surge in popularity. As I said, what many call the “Pinterest problem” predates Pinterest, and as today’s news suggests, it might be more aptly termed the “Tumblr problem.” Read Jeff John Roberts’ post at paidContent for more information.