March 26, 2012
In my blog post last week, I used Pinterest as an example of a website whose Terms of Service (TOS) sells out its users by trying to shift all risk onto them. As I pointed out, Pinterest’s indemnity clause (which made a user liable for any copyright infringement based on an image the user pinned) was basically useless and mainly ended up upsetting people.
On Friday, Pinterest revealed its new TOS . Although that indemnity clause is still there, the tone of the TOS is completely different because of some other changes. I think these are much improved; if these had been in place originally, I doubt we’d have had any of the panic of the last month or so.
Baby, You’ve Changed
First, Pinterest changed its rules of etiquette. The old rules discouraged you from posting your own content:
Avoid Self Promotion
Pinterest is designed to curate and share things you love. If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.
That was a problem, because posting someone else’s content is risking copyright infringement. So Pinterest was encouraging users to get content from other sources and risk liability for infringement. That rule has been changed to encourage users to “be authentic”:
Pinterest is an expression of who you are. We think being authentic to who you are is more important than getting lots of followers. Being authentic will make Pinterest a better place long-term.
Under the new etiquette rules, there’s no reason not to post your own content, which is the safest way to avoid copyright infringement.
In its old TOS, Pinterest also claimed to have a license to your content forever, even if you cancelled your account – including the right to sell your work. Now, Pinterest promises that your content will remain on its servers for only a “commercially reasonable period of time” after you terminate your account. The only exception is that if you post content publicly, or other users repin it, Pinterest can keep it up. Pinterest also promises to respect your account settings, so if you choose to keep your content private, Pinterest doesn’t have the right to display it publicly. Oh, and the right to sell your stuff is gone.
There was one additional particularly troubling clause in the old TOS. If you gave feedback (which Pinterest encouraged),
You acknowledge and agree that all Feedback will be the sole and exclusive property of Cold Brew Labs and you hereby irrevocably assign to Cold Brew Labs and agree to irrevocably assign to Cold Brew Labs all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, trademark, moral rights and other proprietary or intellectual property rights therein. At Cold Brew Labs’ request and expense, you will execute documents and take such further acts as Cold Brew Labs may reasonably request to assist Cold Brew Labs to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
That clause is gone completely.
Finally, we come to the clause I wrote about last week, namely the indemnity clause. The indemnity clause is still there, but there’s a big difference. In a subsection labeled “Your responsibility for your content,” they now provide these instructions:
It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.
There’s now a link to a third-party website with guidance on how to avoid infringement.
So even though the indemnity clause is there, users are now getting some guidance on how to avoid liability for copyright infringement for unauthorized use of others content. The language is also a little different, and although the changes are subtle I think they’re important.
For example, the original indemnity clause says that a user might have liability for a “violation of these Terms,” while the new clause says that a user might have liability for a “breach of any of these Terms.” That change matters because a “violation” could include any failure to comply with any term. A “breach,” however, is a legal term-of-art that’s a little more forgiving; not every failure to comply with a term rises to the level that amounts to a breach of the contract.
It’s little changes like these that soften the TOS. I think the tone is just less threatening.
Do You Love Me Now?
These changes are a huge improvement over the original TOS, and the air of contrition coming from Pinterest shows that the company realizes what a mistake the old TOS were. The site deserves a lot of credit for that.
It’s a shame that it took a collective Internet freakout to spur action. As I explained last week, there was no need to make the TOS as onerous as they were before. Any public relations damage to Pinterest was entirely self-inflicted.
The lesson is the same one I gave in my earlier post: your TOS reflect your site philosophy, and you need to think about the message you’re sending. You can’t just let the lawyers run wild and forget who your customers are. Yes, it’s important to protect your venture, but that doesn’t mean always pushing for the most one-sided terms you can get.
Stay involved. Ask questions, make sure you understand why every provision is there. If you’re trying to create a community, try to create rules that, at a minimum, don’t scare people off.
If you don’t, you may find your site becoming the subject of unflattering blog posts written by attention-seeking lawyers and technology writers. And no one wants that.
Guest author Matt Levy is a former BIG LAW attorney who is much happier at the tech-focused IP firm, Cloudigy Law PLLC. Before law school, Matt was a software engineer with IBM, and much of his practice involves software and Internet-related copyright issues. (He loves that computery stuff.)
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