Regarding fair use: the statutory right to fair use is forfeited, and I am not “now admitting” that it applies only to Pinterest Content. The Key Points (and heading for the relevant section) makes the distinction between Pinterest Content and User Content and clearly states that the loss of fair use rights is in relation to Pinterest Content. In any event, it would be almost impossible for Pinterest to make Users forfeit rights to something that Pinterest had no rights in (i.e. User Content).

We’ll also have to disagree, I think, on the obligation to defend. Unless you are saying that under the old policy a User would actually have to draft the written submissions, conduct depositions and present oral arguments in Court, then I really don’t see how dropping “defend” but keeping an indemnity for legal fees is advantageous. Pinterest would never, in a million years, require a User to step up and defend it: the obligation was never more than an obligation to pay for their defense. Dropping it changes nothing.

Finally, if “claims” already encompasses all of the new language (proceedings, disputes, demands etc), perhaps you could explain why Pinterest thought it would be a good idea to insert extra, unnecessary language into what are supposed to be simplified Terms?

The point of posts like this (and the myriad other posts on the same topic) are to help people find out about these things and have a view on them. Pinterest itself is clear that these “proposed” Terms are a work in progress, which, as a Pinterest Fan who I am sure got their email, you will already know. Knowing what flies in the real world and what won’t is just another part of that process.

But the actions of other sites should be an important consideration when determining whether a story is warranted, especially to a sophisticated blogger like yourself. By using charged rhetoric like: Users must “forefeit” their fair use rights — which you now admit does NOT apply to Users’ own photos or any third party photos they use (which is very, very likely what most readers will assume you meant) — I think you are doing your readers a disservice by creating controversy on a topic that is both industry standard and likely completely unimportant to the vast majority of Pinterest Users.

I also do NOT agree with you that removing the obligation to defend Pinterest doesn’t improve a User’s position. I’m arguing the exact opposite. In the former set of Terms, Users had an obligation to BOTH indemnify and/or defend Pinterest, presumably in Pinterest’s option. Removing one of those obligations necessarily narrows the scope of the indemnification obligation. You also erroneously referred to a “new obligation to indemnify for costs” (the former Terms called them “expenses”), which I have yet to see you acknowledge.

We can agree to disagree over the definition of “claims.” From experience, I can guarantee you that “claims” has and would be interpreted far more broadly than “formal” proceedings. In any event, the point is likely moot. I am highly skeptical that Pinterest (or any other online service) has or would ever require a User to pay for third party claims against the site itself. Yet another reason why scaring Users with this story seems far more like provocative journalism than anything else.

I agree the difference between the Pinterest business model and those of other social networks makes attempts to lump them altogether unhelpful. The Pinterest model seems more similar to that of early YouTube (invite submissions of, and monetise, as much as you can in knowledge that much of it will infringe copyright (the analogy’s not perfect, admittedly)) hence my hesitation to say anything about its eligibility for DMCA protection until we see how broad or narrow the Second Circuit’s ruling in Viacom v. YouTube. We’ll see!

Yes, only referring to Pinterest Content. Regarding the license, I’m not saying it’s more or less generous than other social network terms (aside from the metadata restrictions), just saying that Users are restricted to only the licensed uses, instead of legally permitted uses AND licensed uses.

I think you’re agreeing with me that removing the obligation to defend doesn’t improve a User’s position over the former terms (the obligation to pay reasonable legal fees survives), but I still maintain that ‘disputes’, ‘proceedings’ etc are broader than ‘claims’, which at least implies a formal (perhaps even a legally binding submission).

Thanks again for continuing to contribute – it’s great to discuss these issues in an open forum.

To be clear, we’re talking very specifically about the User’s right to use Pinterest Content, and not photos from other Users (which is “User Content”) or photos from any third party. I hope we can agree that a TOS agreement between Pinterest and a User does not in any way “forfeit” that User’s fair use defense against any third party. With respect to Pinterest Content (i.e., the Pinterest logo, design elements of the service, etc.) it seems perfectly reasonable to me for Pinterest to grant a limited license to its proprietary content. And that license is actually quite broad, and includes several fair use elements that I’ve never seen expressly granted to Users on any other website.

With respect to indemnification, I do believe that the scope of the new indemnity obligation is narrower for the following reasons: First, you reference the “new obligation to indemnify for costs.” However, the former terms required the User to indemnify for “expenses.” I fail to see any meaningful distinction between “costs” and “expenses.” If you have any doubts, note that both indemnification sections refer to the same example: “…including, without limitation, reasonable legal and accounting fees.” Second, the “suits, proceedings, disputes, demands” language was included in the former Terms (albiet indirectly) under the very broad “claims” language. Users are now provided with a narrow list of the types of claims for which they must indemnify Pinterest. Finally, I again stress the complete lack of a defense obligation under the new Terms. The fact that Users are not responsible for defending Pinterest is a significant change to the scope of the indemnity obligation that benefits Users and narrows the scope of the indemnification obligation greatly.

As you point out, the starting point for the new ToS is a User is limited to using the Pinterest Content only “as expressly provided in these Terms”. A User’s rights are therefore based on contract, and not fair use. The fact that some of the express provisions in the Terms might also fall within the fair use definition doesn’t change the fact that Users have contracted out of asserting their fair use rights. You also don’t mention that the “express yourself” etc language is valid only if the use is personal and noncommercial, which is not a qualification for fair use.

Regarding the indemnity, I didn’t say the obligation to defend had been replaced with an obligation to indemify (in fact I referred to the indemnity as having been expanded in the post heading and in Key Point 1). What I did say was that it had been replaced with an obligation to indemnify “those same people [i.e. same as the old indemnity] for *all the old situations as well as*, now, for ‘suits, proceedings, disputes, demands, liabilities’ and, of course, ‘costs’.”

And regarding scope, are you really saying that the new obligation to indemnify for costs (which wasn’t in the old Terms and which explicitly includes costs of defense) is narrower than an obligation to defend? And what then of the new situations in which a User must indemnify Pinterest? The new language includes more than just “claims”: it now includes “suits, proceedings, disputes and demands”. The new language is broader than the old language.

I also don’t agree that the new indemnity clause has, in fact, been “expanded.” Pinterest removed the obligation that Users “defend” Pinterest. In other words, Users are no longer required to go hire a law firm to defend Pinterest in the event of a claim. That is a significant departure from the indemnity clause in nearly every other TOS out there, and one that is actually beneficial for its Users. You’ll also note that Pinterest did not “replace” the obligation to defend with an obligation to indemnity in the new Terms; the old version of the Terms also required that Users “indmenify” Pinterest. Therefore, Pinterest actually narrowed the scope of the indemnity obligation significantly in the new version of the Terms.

That’s not true. All files can be downloaded from YouTube by any user anywhere in the world, including the uploader—-and this is provided as a YouTube promotion as a secondary party, and through the use of third parties. I suggest you rethink your argument a little more, rather than having me provide you with this publicly available evidence.

The case-law:
“[o]ne who distributes a device with the object of promoting its use to infringe copyright[s], as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005)

If I were the 2nd Circuit with that case-law, and the evidence of downloading, I’d ask about ***syndication*** too.