Pinterest's Terms of Service has been gaining widespread attention lately in the tech press. It began in late February with a blogpost from a lawyer "tearfully deleting" a Pinterest page because she feared potential legal liability for posting professional photographs, and gained a steady stream of press through March.

The photographer/lawyer, Kirsten Kowalski, was concerned about her legal liability because she often "pinned" professional photographs (her own and others) to her Pinterest board. She deleted one of her Pinterest boards after looking at Pinterest's Terms of Service because those terms compel users to assume all legal risk in using the site, and to indemnify, or agree to reimburse, the company for any losses connected to accessing and using the site.

Part of the problem is that Pinterest asked its customers to state that

You either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs [Pinterest’s owner] the rights in such Member Content, as contemplated under these Terms.

Most users, however, make content available that they did not license from the original creator (unless it is Creative Commons licensed). Rather, most pinned content is likely a non-infringing fair use of some underlying copyrighted material. Yet if Pinterest were sued over a user’s fair use, the terms suggest that Pinterest would ask that user to pay for the legal defense, even if the use was clearly fair.

As a result of the attention, Pinterest released a new Terms of Service that will go into effect today, on April 6. The new terms provide some breathing room for fair use, and don’t require that users claim to have a license that they do not have. Ultimately, this was not enough for Ms. Kowalski, who determined that figuring out whether a pinned image was a fair use was too challenging.

To determine whether a work is fair use, courts generally examine four factors: the purpose of the use (i.e. is the use for commercial, non-profit, or educational purposes); the nature of the copyrighted work, the amount of the copyrighted work used, and the effect of the fair use on the potential market of the copyrighted work.

For example, in Michael Savage v. Council on American-Islamic Relations, Inc. (CAIR) the court ruled that CAIR's posting of a four-minute clip of Savage's show with criticism was fair use because of its primary intent to criticize and comment on Savage's statements and views. A similar ruling occurred in Sedgwich Claims Management Services, Inc. v. Delsman. The defendant used the plaintiff's photographs in "wanted-style" postcards and accused plaintiffs of unsavory business practices. The court found that the use of the pictures fair because it was both transformative in nature and used in the context of criticizing plaintiffs.

Turning to photographs like those often pinned on Pinterest, in Kelly v. Arriba Soft, the Ninth Circuit first addressed thumbnail photos for image search, concluding that both "[t]he creation of and use of thumbnails in the search engine is a fair use.” The Ninth Circuit expanded upon that ruling in Perfect 10 v. Google, Inc., holding that framing linked, full-size images of copyrighted photographs was not a "display" or "distribution" that violated copyright law. The court reasoned that Google transmitted only an address that directed a user's browser to a site where a copy of the full-size image was displayed and did not communicate a display of the work itself. As such, the Google thumbnails did not interfere with the secondary market for the images and did not induce copyright infringement.

For most users, Pinterest’s platform will provide a forum for fair uses. Posting pictures with captions and commentary, designed to spur further commentary and collaboration, are paradigmatic fair uses. Most users seek no commercial benefit, and only use as much of the underlying image as is necessary for the commentary. Thus, a typical Pinterest user, to the extent she draws from copyrighted works, will be making acceptable fair uses of those works.

To be clear: Pinterest has built its business on fair use. Trying to impose terms requiring users to say they have formal licenses they generally will not have makes no sense, and does not reflect the way those users use the site. Moreover, this does not appear to be the way even Pinterest expects its users to use the site. Appropriately, they have removed that provision.

In addition, it is unclear what Pinterest really expected from its indemnity provisions—few users will have the financial resources to help pay for Pinterest’s defense, and there is no surer way to torpedo your company than to hand gargantuan legal bills to your users. This provision, common in Terms of Use, remains in today's April 6 revision.

The kerfuffle over Pinterest Terms of Service also serves as an example of how the long legalistic writing of these agreements confuses customers and how the terms do not reflect the true nature of the relationship between the user and the service provider. Pinterest is just the latest example of service providers who attempt to bind users into a one-sided terms-of-service that require a law degree to fully understand.

By unthinkingly drafting legal language designed only to maximize protections for the service provider, Pinterest forgot the backbone of its business, the users, who are already plagued with other dangerous terms across the Internet. Without users, Pinterest is nothing. Without Pinterest, users have dozens of other sites vying to be the collaborative hub for their non-infringing commentary on the wealth of information throughout the web.