Business/Finance

Don't even LOOK at Pinterest without having your attorney present

DocumentUgh. I’m no attorney and don’t even play one on TV, but after wading through only two pages of the new terms and scribbling notations like crazy, I’m inclined to just delete my account and never intentionally click through to their website again. Unless I’m horribly mistaken, I can only come up with four possible scenarios to account for their gobbledy-gook:

  1. Product of infinite monkeys on infinite typewriters that vaguely looks like a TOS;
  2. Cobbled together by a non-attorney copy/pasting from various random sources willy-nilly, including toilet paper packages, without fully considering the ramifications;
  3. Cobbled together by a rather lackluster and sleep-deprived law student who had word salad for lunch; or
  4. Cobbled together by a brilliantly mad Eeeevil intellectual property (IP) attorney in a secret underground laboratory as part of a grand conspiracy to ensnare as many people in an IP infringement net as imaginable because retaining those services was still cheaper than buying a movie studio, a music label or a death ray.

In my opinion, the new terms are so bad (as literature) they merited close scrutiny.

Pinterest User: Caveat Productum

First, as noted above, I am no attorney. Nothing in this post constitutes legal advice. If you want that, speak with an attorney. Capiche? For one thing, in the interest of provocative editorial, elements of satire and humor are none-too-subtly woven into this post. I leave it to the discerning intellect (yours, right?) to know it when you see it. If you don’t, speak with an attorney.

If you are a Pinterest user (or visitor or other who accesses the Service), or merely considering being one such (or just clicking through to their website), here are some questions you may want to ask your attorney first.

Paragraph 2 of Pinterest’s new Terms of Service (effective 4/6/2012) states, “By accessing or using the Pinterest Service, you agree to be bound by these Terms and by our Privacy Policy, whether or not you are a registered user of our Service. These Terms apply to all visitors, registered users, and others who access the Service (“Users”)

Possible questions for an attorney: Seriously? I’m on HeadTome and someone posts a link to something at Pinterest, for which I am not a registered user, and simply by clicking the link (which might not even be clearly identified as a link to Pinterest (e.g., if it was shortened at bird.ishness), I’m magically bound by their Oath of Confoundery? Even if I just see the image to which the link pointed, say to myself, “ugh,” and move merrily along to my BatTurgid downloads of the latest pirated FWB (my own intials, TYVM) movie without ever even becoming aware of Pinterest’s Terms, etc., much less actively indicating my consent? For that matter, just how long am I so magically bound? Is there an out if a prince or princess comes along and kisses me?

Part I, Sharing Your Content, paragraph a, Your Content, states, “You retain all of your rights in all of the User Content you post to our Service.” 

Question for attorney: What are the ramifications of this statement in relation to one of the bullet points referenced below re: “use, display, mirroring or framing” of “any individual element within the Service” (context be damned, but whose)?

Part I, paragraph 2, “How Pinterest and other users can use your content,” states, “Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users.” 

Questions for attorney: Is this express statement of grant of remarkably open-ended licensure to Pinterest consistent with the less-than-express statement of equivalent grant of licensure to their “Users,” (all visitors, registered users, and others who access the service (“Users”) from intro paragraph 2 above as part of their right to sublicense?

Intro paragraph 2 seems to include all “Users,” inclusive of “others who access the Service,” without express limitation to only those “Users” who (or that, in the event of software) engage in authorized access to the “Service.” If a hacker compromises Pinterest, does this unauthorized “User” then benefit from this extension of licensure?

For that matter, should I have a faulty understanding of fair use doctrine or appropriate attribution under such terms as Creative Commons (or other) licensure, to just how far and wide of a net of liability am I exposed, and how many layers deep, by “worldwide” licensure? If it turns out that I shouldn’t have posted that image of an Ikeahhhhh [no such company of which I’m aware] Deluxe Butt Cozy, it’s snagged by a “User” (authorized or otherwise), and inexplicably goes viral from there only to have Ikeahhhhh go copyright crazy, just how far over will I need to bend to extract myself from the Cozy Trap?

Part I, paragraph c, “How long we keep your content,” states, “Following termination or deactivation of your account, or if you remove any User Content from your account or your boards, Pinterest may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes.” 

Questions for attorney: Hold on. Didn’t I just grant an All-You-Can-Eat license to them in paragraph b? So when they say they’ll only keep “my” User Content for a commercially reasonable period of time (how long is that, anyway?), what about that User Content they now deem to be theirs, as in, everything I posted? Don’t they get to keep that, even though it’s identical, down to the pixel, to “my” content?

Part I, paragraph d, “Your responsibility for your content,” sub-paragraph i, states, “We must also insist that you only use our Service in a manner that is consistent with the Pinterest Acceptable Use Policy.”

In turn, in the Pinterest Acceptable Use Policy, a bullet (unnumbered and thus a real pain in the ass to reference should they go moving bullets around) under unnumbered Part II, “You agree not to engage in any of the following prohibited activities,” states, “Use, display, mirror or frame the Service, any individual element within the Service, the Pinterest name, trademark, logo or other proprietary information, or the layout and design of any page, without our express written consent.” 

Questions for attorney: What is the definition of “any individual element within the Service“? I get that all of the Pinterest-designed aspects of design are theirs, no matter how blandly generic they may be (thus casting an impossibly wide umbrella over many simple design elements I might use in my non-Pinterest online activities, such novel features as columns, boxes, pictures over comments and user icons), but don’t the actual images displayed on their pages constitute elements as well? If I post that poorly considered image of the Deluxe Butt Cozy (mentioned above) on Pinterest, can’t this be construed that I may not also post (or otherwise use) it wherever I damned well please, never mind that I retain all my rights?

In the Pinterest Acceptable Use Policy, a bullet (also unnumbered) under unnumbered Part II reads, “Use the Service for any commercial purpose or the benefit of any third party, except as otherwise explicitly permitted for you by Pinterest or in any manner not permitted by the Terms.”

Questions for attorney: Let’s just say I have a blog that incorporates MadNonsense ads and has Beebazon Marketplace items for sale. Does this mean that if I include my website in my Pinterest profile right where it has a field for my website that, by virtue of conceivably driving traffic from Pinterest to my blog where said traffic might click a penny-generating ad or buy a book, I have thus breached the agreement? What if I have it set up so that all my profits from Beebazon go to charity? Beebazon still makes a profit, so does that mean I’ve still run afoul, even if no Pinterest user actually does go to my website and/or I don’t make a dime for myself?

In the Pinterest Acceptable Use Policy, a bullet (also unnumbered) under unnumbered Part II reads, “Encourage or enable any other individual to do any of the activities prohibited in this Acceptable Use Policy.” 

Questions for attorney: Enable??? They’ve got to be shitting us, right? Doesn’t just clicking through to Pinterest (without registering an account, which still magically makes me a User), “enable” Pinterest Users (also conceivably just passing through without registering, or maybe just hacking their way in, since User is so broadly defined) by conceivably providing a rationale for their hacking, clicking, Butt-Cozy posting, IP-infringing, and otherwise immediately suspect nefarious activities? Didn’t I just violate this one by bothering to look up their revised Terms & Privacy statement?

Oh, and attorney, please tell me these citations fall within fair use. I’d hate to be sued by Pinterest. When not attempting to shunt any and all legal liability while simultaneously seizing every right imaginable, they seem to reserve that right first and foremost.

As for you, Gentle Reader, I gave up right about here. This was one of the most painful things I’ve ever read, and I’ve read some real crap, I tell you. There’s plenty more of this document (and documents included by reference) to read. If you want to discover other fun questions for your attorney, by all means, um, how do I say this without enabling you? Erm. I can’t. You know what to do.

—-

Image credit: Photograph by storebukkebruse under Creative Commons license.

 

 


2 replies »

  1. As someone with experience with these types of agreements, let me try to address some of your concerns.

    “Seriously? I’m on HeadTome and someone posts a link to something at Pinterest, for which I am not a registered user, and simply by clicking the link (which might not even be clearly identified as a link to Pinterest (e.g., if it was shortened at bird.ishness), I’m magically bound by their Oath of Confoundery?”

    Yes. This ensures that hackers, spam-bots, and others with nefarious purposes can’t argue that they weren’t bound by the terms (including the Acceptable Use Policy) because they never created an account and/or signed a formal agreement.

    “What are the ramifications of this statement in relation to one of the bullet points referenced below re: “use, display, mirroring or framing” of “any individual element within the Service” (context be damned, but whose)?”

    You’re confusing two different concepts. Users retain whatever ownership interest they have in the content they post. Pinterest prohibits users from mirroring or framing Pinterest’s own service which Pinterest says includes its “name, trademark, logo, or other proprietary information.”

    “Is this express statement of grant of remarkably open-ended licensure to Pinterest consistent with the less-than-express statement of equivalent grant of licensure to their “Users,” (all visitors, registered users, and others who access the service (“Users”) from intro paragraph 2 above as part of their right to sublicense?”

    Yes, it is. The license is granted to Pinterest only (“you grant us”), and only for the purposes of “operating and providing the Service(s) to you and to our other Users.” Other Users don’t have the right to sublicense anything.

    “If a hacker compromises Pinterest, does this unauthorized “User” then benefit from this extension of licensure?”

    Not from the license granted only to Pinterest, no. They, of course, can view the content on the site like anyone else, but their actions would put them in breach of the terms (see my first point above).

    “For that matter, should I have a faulty understanding of fair use doctrine or appropriate attribution under such terms as Creative Commons (or other) licensure, to just how far and wide of a net of liability am I exposed, and how many layers deep, by “worldwide” licensure?

    Pinterest requires a worldwide license because its site is accessible worldwide. If your content license from a third party doesn’t permit worldwide distribution, you shouldn’t post it on the world wide web. Moreover, none of the Creative Commons licenses (or the “fair use doctrine” for that matter) are geographically limited.

    “If it turns out that I shouldn’t have posted that image of an Ikeahhhhh [no such company of which I’m aware] Deluxe Butt Cozy, it’s snagged by a “User” (authorized or otherwise), and inexplicably goes viral from there only to have Ikeahhhhh go copyright crazy, just how far over will I need to bend to extract myself from the Cozy Trap?”

    Along with the new Terms, Pinterest rolled out new copyright and trademark tools to make it easier to remove infringing content from its service (see Pinterest’s press release). If Ikeahhhhh submitted a takedown request to Pinterest because the content you uploaded infringed their rights, as permitted by federal law, Pinterest would take that content down across its site.

    “Hold on. Didn’t I just grant an All-You-Can-Eat license to them in paragraph b? So when they say they’ll only keep “my” User Content for a commercially reasonable period of time (how long is that, anyway?), what about that User Content they now deem to be theirs, as in, everything I posted? Don’t they get to keep that, even though it’s identical, down to the pixel, to “my” content?”

    Pinterest makes no such claims. As you noted, Pinterest states expressly that “You retain all of your rights in all of the User Content you post to our Service.” When you remove your content, your license is terminated (note that your license is not “perpetual or irrevocable” like many other sites), except that Pinterest has a “commercially reasonable period of time” to take it down from all of their servers worldwide.

    “What is the definition of “any individual element within the Service“? I get that all of the Pinterest-designed aspects of design are theirs, no matter how blandly generic they may be (thus casting an impossibly wide umbrella over many simple design elements I might use in my non-Pinterest online activities, such novel features as columns, boxes, pictures over comments and user icons), but don’t the actual images displayed on their pages constitute elements as well? If I post that poorly considered image of the Deluxe Butt Cozy (mentioned above) on Pinterest, can’t this be construed that I may not also post (or otherwise use) it wherever I damned well please, never mind that I retain all my rights?”

    The intent of this section is clear: don’t misuse proprietary elements of the Pinterest service, whether as a whole (i.e., framing the entire site) or in its individual elements (i.e., Pinterest’s logo alone). User Content continues to be owned exclusively by users, and nothing in this section changes that.

    “Let’s just say I have a blog that incorporates MadNonsense ads and has Beebazon Marketplace items for sale. Does this mean that if I include my website in my Pinterest profile right where it has a field for my website that, by virtue of conceivably driving traffic from Pinterest to my blog where said traffic might click a penny-generating ad or buy a book, I have thus breached the agreement? What if I have it set up so that all my profits from Beebazon go to charity? Beebazon still makes a profit, so does that mean I’ve still run afoul, even if no Pinterest user actually does go to my website and/or I don’t make a dime for myself?”

    Potentially, yes. It seems reasonable to me for Pinterest to prohibit users from leveraging a platform with millions of users to generate ad revue for themselves or others. That’s not the purpose of Pinterest’s service.

    “Enable??? They’ve got to be shitting us, right? Doesn’t just clicking through to Pinterest (without registering an account, which still magically makes me a User), “enable” Pinterest Users (also conceivably just passing through without registering, or maybe just hacking their way in, since User is so broadly defined) by conceivably providing a rationale for their hacking, clicking, Butt-Cozy posting, IP-infringing, and otherwise immediately suspect nefarious activities? Didn’t I just violate this one by bothering to look up their revised Terms & Privacy statement?”

    No, you didn’t. The language prohibits you from encouraging or enabling third parties to do any of the “activities prohibited in this Acceptable Use Policy.” I fail to see how looking up the Terms & Privacy Statement or “just clicking through to Pinterest” encourages or enables a third party to violate any of the rules.

    Hope this helps.

  2. @Anonymous Thank you for taking the time to post the thoughtful response. I certainly can’t dispute any of the clarifications you provide, given that I don’t practice law, but each clarification in turn either seems to validate my concerns as the generic “Internet user” or prompts further questions and concerns. In short, I come full circle to a simple point of business advocacy…when in doubt, consult an attorney.

    I’m lucky (sort of?). Given than I’m not a nationally known blogger with vast wealth, I’d think I would make a poor target for infringement litigation. Then again, the RIAA, for example, has demonstrated that even piss-poor targets are better to shoot at than none at all, hence my abundance of caution. On the other hand, were I a duly authorized representative of a business concern, I wouldn’t dream of subjecting my company to the kinds of liability that appear to be part and parcel of agreements such as this one without at first running it by Legal (or the equivalent). If nothing else, I’d want their E&O insurance policy pockets in the crosshairs along with my own pockets should such an agreement backfire on me to the detriment of my company, my stakeholders, and myself.

    The very first clarification you provide, along with its anti-hacking rationale, that the mere act of “accessing” the site (by any means) binds one to their agreement, should, I think, just about terrify the risk averse. Granted, if I never post a single thing there, my exposure should be nil, but that’s a foot in the door that makes me profoundly uncomfortable. Easy solution for me? Never return, if I can help it. The idea that an unwanted pop-up generated by someone else’s website might cause me to inadvertently open such a site as Pinterest on my computer and automatically bind me to anything at all is just appalling to my sense of justice.

    What next? Automatic non-disclosure agreements at car dealerships? I walk in the door and I’m automatically bound to never reveal the price offered by them when kicking tires at the competition, and just because it’s their ingenious strategy to combat fake customers spying on the competition for other dealerships?

    In any case, I’m glad of your comments. I believe the thoughtful reader/Pinterest user/prospective user will be well-served reading both my cautions and your assurances when deciding whether to plunk down ~$250/hour for a contract review from their attorney.

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