Pinterest Adds Video Pinning: More Legal Problems?

Pinterest recently added video pinning capabilities. Now, users can pin and repin links to videos. With all the legal uncertainty over the pinning of images, do these videos now add to their legal woes? Can Pinterest get into more trouble for pinning videos that Pinterest or Pinterest users do not own? Right now, there is no ability to upload your own video. All video pins on Pinterest are merely links to Youtube or Vimeo, but you can view these embedded videos in full on the Pinterest website.

1.) The first question that comes to mind is: Is Youtube or Vimeo okay with this?

From Youtube’s Terms of Service:

“You agree not to distribute in any medium any part of the Service or the Content without YouTube’s prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).”

Vimeo has similar language regarding embedded videos. Pinterest uses embedded videos, which is likely allowed and encouraged by Youtube. After all, Youtube provides you with the website codes to embed its videos. Since Pinterest does not actually copy and store videos on its own servers (the way it does with images), Pinterest might be okay in this regard.

I do foresee a scenario if Pinterest video pinning get so huge and the number of embedded videos on Pinterest gets so large that Pinterest videos steal traffic away from Youtube. After all, if Pinterest has pinned all videos from Youtube, then users can just surf Pinterest’s website to watch videos. If Pinterest allows users to upload their own videos, then Pinterest also becomes a competitor to Youtube. In such a case, Youtube may suddenly care.

2.) But are the users who uploaded the videos on Youtube okay with this?

I would assume so. After all, they uploaded their videos onto a public website. It is arguable that they only wanted Youtube to display their videos, and not a ton of third party websites (like Pinterest).

As the copyright owner, he or she gave Youtube the ability to provide embedded videos (under Youtube’s Terms of Service). Under this view, the copyright owner can’t really stop Pinterest, since Pinterest has permission from Youtube to embed the video. On the other hand, Pinterest still must comply with the Digital Millennium Copyright Act. If the copyright owner requests Pinterest to take down the video, then Pinterest must do so.

It is possible for Pinterest users to pin private videos found on Youtube, Vimeo, or elsewhere on the Internet. After all, pinning a private Youtube video onto Pinterest makes that video now public. In such a case, the copyright owner of the private video may care.

3.) Is this copyright infringement?

This is likely an unclear issue. On one hand, sharing links themselves are not considered copyright infringement. Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553, * at 6 (C.D. Cal. 2000) (“Hyperlinking does not itself involve a violation of the Copyright Act, since no copying is involved, the customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”).

On the other hand, this isn’t just a normal hyperlink with words. It is an embedded video. There is no copying involved, but Pinterest displays the entire video and distributes it through repining. While this would normally constitute copyright infringement, Youtube (but perhaps not the copyright owner) appears to allow this.

Courts (remember Grokster and Napster?) have laid the groundwork for copyright owners to bring successful claims for contributory copyright infringement against individuals who provide links to infringing content. If the pinning and repining of videos start to somehow include large quantities of infringing content (like illegal movies or television shows), then Pinterest could have some problems if it does not promptly remove them.

4.) Should Pinterest users be worried about pinning videos?

As of now, Pinterest’s terms of use still state that the user is responsible for anything he or she pins. I would still caution about pinning material you don’t own, and since you can’t upload your own videos, I would caution against pinning videos on Pinterest at all. Under Pinterest’s terms of service, if Pinterest gets sued, Pinterest can still blame the users and ask them for money.

In sum, Pinterest’s video pinning and repining capabilities do not guarantee legal protection. While it is much better than straight up copying, which Pinterest does with its images, there is the potential for legal issues to arise as more and more videos get pinned. Pinterest will also have to start to monitor their videos for obscene, violent, and other improper material, which may be difficult to do. For example, if you pin a video from Youtube that requires a confirmation that you are over 18 to view the video on Youtube, does Pinterest automatically remove this confirmation requirement to view the same video on Pinterest?

In allowing the pinning and repinning of videos, Pinterest seems to assume that copyright owners and the creators of the videos will not mind. Pinterest, in essence, takes the same “risk it” approach that it does with images, in that it hopes that the copyright owner will never sue them. At some point, the copyright owners may care, and that could lead to legal woes for Pinterest.

There may be quite a bit of uncertainty over Pinterest’s new video pinning abilities, but Pinterest will eventually have to address many of these issues, whether in court or otherwise.