–Catlan McCurdy, Attorney
Earlier this spring, I discussed copyright liability for Pinterest users, anticipating that the debate would continue into the summer. But concerns over pinning copyrighted material has petered out faster than the public’s interest in Tom Cruise, and after attending a fantastic Social Media and Law panel discussion on Tuesday, I’m wondering if everyone has come to the same conclusion: no company is ever going to bring a copyright infringement suit against a Pinterest user. And the reason for this conclusion may be social media itself.
Social media is a communication tool – a two way street – where users are interacting with each other on a variety of platforms at almost instantaneous speeds. A panelist from Tuesday likened social media to a town square gathering on steroids. The ability to reach the entire world via a blog, Facebook, Twitter, a website, etc. has given users the power to influence corporate decision making. The hullabaloo over Louis Vuitton’s cease-and-desist letter, blogged about here, is a more recent example of how IP enforcement attempts can backfire when the recipient uses the internet as a defensive weapon. No longer is the day when a cease-and-desist letter is quietly discussed with counsel. Social media enables users to talk back to companies and alert the online community as to the “injustice” being done.
So, whether pinning proprietary material on Pinterest could be justified with a fair use defense (as I would argue) may not even matter, because it’s hard to imagine any company that would want to subject themselves to the terrible PR that we all know would result. Worse yet for copyright owners, Pinterest is a site where users are encouraged to “organize and share what you love.” Sending a Pinterest user a letter instructing them to remove your copyrighted materials and accusing them of copyright infringement is akin to a situation in college where I worked up the nerve to tell a guy that I liked him, and he said, “Thank you.” It’s a total slap in the face.
While no attorney would ever counsel a client to use another’s copyrighted material freely, this Pinterest issue might be one where we all step back and focus on the reality of the situation. For what it’s worth, Pinterest recently snatched an attorney from Google, Michael Yang, to fill the role of general counsel. Based on the “it’s standard legal fare to have in-house legal counsel,” quote from the Pinterest spokeswoman, I don’t see this hire as an indication that copyright lawsuits are waiting in the wings. More likely, the acquisition of Mr. Yang is part of Pinterest’s bigger plans of growth and possible sale.