AHEM! I've been swimming with the sharks on the internet for 10 years, I've have worked very hard, and done very well. My content just doesn't lend itself to pinterest's brand of lemonade-making. That's the reality that I have to work with.

I have a few questions about some solutions that have been offered that are workable.

(1) Cloudflare. That looks good and easy. I looked up their terms and services, and I understand that I must point the nameservers to them, and that they will modify my code. My question is: are these modifications advertisements, hidden links for SEO, or are they legitimate? How do they make money?

(2) TWO image directories. That's going to be a lot of work, however, I like that it offers a permanent solution to the inevitable bevy of Pinterest clones that are bound to appear. The problem with Pinterset's "no-pin" meta-tag is that not only can people still pin your images after the warning, but it only targets Pinterest. My question is this: I am not enough of a .htaccess expert to figure out how this should be coded. Could someone kindly provide a sample rewrite for this solution to work?

(3) Legal avenue (illegal use). This could bring some collective relief, if it forces Pinterest to (a) shrink images to thumbnail size only or (b) allow pins on websites that actively opt-in only, or at offer a single-action, opt-out solution.

In essence, the core of my objection is that Pinterest allows FULL-SIZE images. If they were shrunk down to a maximum single dimension of 150 pixels, I'd be all for it. Not to mention that there is legal precedent, this would be legitimate fair use. Why can't they be honest, and just do that?

> (2) TWO image directories. That's going to be a lot of work

Batch watermarking software should make creating your offsite directory go pretty quick. If your images are in a database, then the watermarks could just be printed when they're called from offsite (i.e., if mysite serve up clean, else print watermark)

[edited by: Play_Bach at 2:46 pm (utc) on Mar 29, 2012]

I'll cover the legal direction.

(3) Legal avenue (illegal use). This could bring some collective relief, if it forces Pinterest to (a) shrink images to thumbnail size only or (b) allow pins on websites that actively opt-in only, or at offer a single-action, opt-out solution.

Pinterst.com is not registered as a designated agent of DMCA as detailed by Digital Millennium Copyright Act of 1998. They have "sort of" borrowed the literature from the act but the act cannot protect them without their official registration.

Assuming they registered under another name (which is why I cannot find their designated agent claim @ [copyright.gov...] they are violating DMCA provisions which also voids their protection.

Your best bet... stop posting here and contact a law firm experienced in intellectual property law with specific experience in digital media.

Pinterst.com has no safe harbor from prosecution thus you can name them as a co-defendant in a lawsuit with their members that violate your rights.

I would believe the law firm could produce an out of court settlement quite quickly since Pinterst.com are ignorant to a lot of liability due to poor due diligence.

That said, you cannot sue without registering your rights with the same office (copyright.gov)

In essence, the core of my objection is that Pinterest allows FULL-SIZE images. If they were shrunk down to a maximum single dimension of 150 pixels, I'd be all for it. Not to mention that there is legal precedent, this would be legitimate fair use. Why can't they be honest, and just do that?

Listen, this isn't about process but rights. Rights to define how everyone may use your works.

Devaluing your rights (each creator) is why Pinterst.com does.

<added>They were on the list [copyright.gov...]

@helleborine
(just sent you a sticky re: watermarking)

Re Cloudflare - they make their money on premium service plans.

@helleborine, as a short term stop-gap to get the meta tag through your static pages while you work on the other solutions, could you do a "Find" and "Replace"? I've done that myself on numerous occasions!

For about 3-4000 pages? Yes, I could do a cross-file search/replace with a perl script but haha, I am a conscientious objector of sorts, I don't see why we Pinterest puts the onus on all of us to OPT OUT when we ought to OPT IN instead.

Sure, we can do this now for Pinterest, but do we want to do this for every individual Pinterest clone wannabe in the future? NO.

Further, I hear that after people get the warning they can pin anyway, but I didn't verify this personally. Even if it worked, the message that pops up encourages visitors to write to the webmaster to question them. Not only are we hassled if we want to opt out, but even if we opt out, visitors are encouraged to still hassle us. ;-)

In a perfect world, Pinterest should show thumbnail-size images only. No one could complain, thumbnails have been legally deemed to be fair use already.

Why can't they just use thumbnails. PROBLEM SOLVED for everyone, Pinterest users are happy, Pinterest is happy, we're happy.

Let's shun those evil Pinterests, only 21% of them purchase:
[webmasterworld.com...]

@fathom:

That said, you cannot sue without registering your rights with the same office (copyright.gov)

I don't think this is correct.

Your work is protected as soon as you create it. You own the copyright in your work (except for parts of the work where others hold the copyright).

So you CAN sue for damages at any time without registering your work with the US Copyright Office. This is even more true when you are living abroad and creating works. You do not have to register your works with the US Copyright Office to have the copyright for your work.

But unfortunately, this will only allow you to sue for ACTUAL damages. Say, you licence photos at 100 US Dollars each. Now you come across an unlicenced use of your image. You can sue the infringer for actual damages, i.e. the amount that your works typically sell for. So you might sue for 100 US Dollars plus some damages (50 Dollars) plus attorney fees. In the end, you might get 150-200 US Dollars out of this infringement. Good, but it can be much better!

That's why smart content owners register their works with the US Copyright Office: THIS allows you to sue for STATUORY damages. And these range from $750 to $150,000 PER INFRINGEMENT. Five images - five infringements. Doesn't that sound much better? (And this explains why Youtube and the like are soo afraid of copyright infringements, especially when the rights holders are Hollywood studios with very deep pockets.) This can become quickly expensive, very expensive.

Having said that, I am not a lawyer, so YMMV. Go check with an attorney specialized in US IP Law. That will give you a full view of your options.

Let's shun those evil Pinterests, only 21% of them purchase:

Yeah I know. If I were selling pink sequined tampons with cute bunny ears I'd be a millionaire right now.

No one could complain, thumbnails have been legally deemed to be fair use already.

So is what Pinterest is doing legal? They seem to be pushing the boundaries.

@ zett

While you have a commonlaw copyright the moment you put a work into a tangible form that only allows you to pound your chest and yell "I'll sue"... you cannot actually sue anyone for damages without first proving you own a copyright.

Under Section Registration and civil infringement actions 411.(b)(1) of the copyright law states "A certificate of registration satisfies this requirement" (for proof of copyright).

Just saying you own copyright will never get you into a court of law let alone filing for court action... you need to submit your issuance number as part of your claim.

Quoting The Copyright Office Circulation 01 page 7 [copyright.gov...]

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.

Among these advantages are the following:

• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U. S. Customs and Border Protection website at www.cbp.gov/.

Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

you cannot actually sue anyone for damages without first proving you own a copyright.

Wrong.

You CAN sue.

However, only actual damages may be recovered, not statutory damages.

Your own quote says exactly that:

If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Seth Resnick, a renowned photographer that I respect, has posted on every page the following:

In the event that an infringement is discovered you will be notified and invoiced at the minimum 10x the STANDARD FEE for unauthorized usage and/or prosecuted for Copyright Infringement in U S Federal Court where you will be subject to a fine of US$150,000 statutory damages as well as all court costs and attorneys' fees.

I list standard rates for image and text usage on some of my sites just to establish the rate for the page usage and have had a couple of ugly infringement incidents.

Did I collect a major windfall of cash?

Of course not, but they quickly settled for a few thousand just to make me go away because as I pointed out the good IP attorneys easily start at over $300+/hr and they would be paying a LOT of money to the attorney, or they could just pay me upfront and get it over with.

Never forget the deadlines.

Don't give people any wiggle room or they will try to wiggle you to death while trying to cover their tracks. I gave them a deadline for making a decision, for making the payment, either by CC or by check, and if by check requested they fax a copy of it to prove it had been written and was indeed going into the mail, with a deadline for receiving it before proceeding otherwise for the maximum allowed by law.

Trick here is the infringer doesn't know if you filed a copyright or not and throwing the exact DMCA in their face with the $150K statutory damages number in their face will scare the heck out of 'em.

You'll be shocked how prompt people can be when the alternative is dropping 2x-3x the amount hiring an attorney to defend themselves.

Wrong.

You CAN sue.

However, only actual damages may be recovered, not statutory damages.

Your own quote says exactly that:

If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

You CANNOT get a court date without an issuance number... you need to prove your copyright in advance of going to court as no infringement can occur until a right is proven. In the USA, that right can only be proven through copyright registration.

The quoted para is suggestive that if you have not registered prior to an infringement occurring you can still.

Seth Resnick, a renowned photographer that I respect, has posted on every page the following:

In the event that an infringement is discovered you will be notified and invoiced at the minimum 10x the STANDARD FEE for unauthorized usage and/or prosecuted for Copyright Infringement in U S Federal Court where you will be subject to a fine of US$150,000 statutory damages as well as all court costs and attorneys' fees.

He has the rights to do that... but if I got that in the mail I would toss it in the garbage... then what?

The thing about going to court you have to cough up the expense first, then win, then chase the infringer with court orders thereafter... it isn't cast in stone... and you could equally lose.

The other big problem you have... statutory damages you must prove willful intent... that isn't easy to prove. Even on actual damages, if a website makes $1000 you need to prove the difference that your unauthorized used image produced on its own. In addition, without willful intent you don't get legal expenses either.

I list standard rates for image and text usage on some of my sites just to establish the rate for the page usage and have had a couple of ugly infringement incidents.

Did I collect a major windfall of cash?

Of course not, but they quickly settled for a few thousand just to make me go away because as I pointed out the good IP attorneys easily start at over $300+/hr and they would be paying a LOT of money to the attorney, or they could just pay me upfront and get it over with.

Never forget the deadlines.

That's great ... those ignorant of the law can be coerced into breaking the law for fear of being prosecuted but that doesn't mean you are right.

Don't give people any wiggle room or they will try to wiggle you to death while trying to cover their tracks. I gave them a deadline for making a decision, for making the payment, either by CC or by check, and if by check requested they fax a copy of it to prove it had been written and was indeed going into the mail, with a deadline for receiving it before proceeding otherwise for the maximum allowed by law.

Fair enough.

Trick here is the infringer doesn't know if you filed a copyright or not and throwing the exact DMCA in their face with the $150K statutory damages number in their face will scare the heck out of 'em.

Ignorance is bliss but you are still wrong... copyright.gov database can be publicly search for free. I can see you don't have any registered rights. I also know that it take 9 months to get an issuance number (or you can pay $750 per title for a fast claim).

You'll be shocked how prompt people can be when the alternative is dropping 2x-3x the amount hiring an attorney to defend themselves.

I'm shocked that you would be so cavalier with a right. You really should contact an IP attorney for a free consultation before you get yourself into trouble.

The LAW is about equality. The courts are there to settle disputes, you don't have a lock on righteousness you are merely the plaintiff with certain rights. The alleged infringer also has rights and one of those is they don't need to proven anything. You shoulder the burden of proof... that isn't easy to do especially if your coercion scheme is brought into the picture.

That Seth Resnick, the renowned photographer that you respect is potentially screwing himself for any court action (suggesting he has no intention on ever exercising his rights).

BTW... if anyone is interested I have a close example of a Pinterst case.

Case C 09-0884 MEJ.
United States District Court,
N.D. California.
April 16, 2010.

The back story... while the plaintiff won 3 of their 4 claims and the defendant was ordered to pay in exceed of $21,000 in restitution plus court costs the defendant packed up shop and 2 years later the plaintiff is since waiting for their rightful winfall.

PDF is available on request.

You CANNOT get a court date without an issuance number...

Guess my IP lawyer didn't know anything as he certainly didn't say that whatsoever. I don't pretend to be a lawyer nor do I play one on TV but I do know the one I hired said we were taking the guy to court before they settled.

After one incident though, you wise up and file for actual copyrights just to make life easier.

you need to prove your copyright in advance of going to court as no infringement can occur until a right is proven

How can you prove that YOU are the original copyright holder (even without formal registration)?

For photographs, for example, you as the creator of a photo typically do not put the high-res original files online, but ALWAYS a smaller image. So you can easily prove in court (or, if you want, also in the court filing) that you are the creator. All you have to ask the infringer is - "Please show us the original file, and tell us how you modified the image." Typically, the infringer will just admit that he can't do that. Dumb infringers will make up a story and maybe even provide an upsampled version of the image that they claim to be "the original". Until you show up with your 16 MP RAW file. If the infringer still insists, let an expert take a look at both originals. :-) :-)

Hard rule: Never post high-res originals online!

Guess my IP lawyer didn't know anything as he certainly didn't say that whatsoever. I don't pretend to be a lawyer nor do I play one on TV but I do know the one I hired said we were taking the guy to court before they settled.

After one incident though, you wise up and file for actual copyrights just to make life easier.

1. Free advice isn't worth much.

2. I don't claim to know your attorney but you can pay legal fees all you wish... you will never see the inside of a court to hear your case without an issuance number.

3. Exceptions are many... your attorney can file and be heard for default judgment but will lose 100% of the time without an issuance number because you have no proof of copyright.

How can you prove that YOU are the original copyright holder (even without formal registration)?

For photographs, for example, you as the creator of a photo typically do not put the high-res original files online, but ALWAYS a smaller image. So you can easily prove in court (or, if you want, also in the court filing) that you are the creator. All you have to ask the infringer is - "Please show us the original file, and tell us how you modified the image." Typically, the infringer will just admit that he can't do that. Dumb infringers will make up a story and maybe even provide an upsampled version of the image that they claim to be "the original". Until you show up with your 16 MP RAW file. If the infringer still insists, let an expert take a look at both originals. :-) :-)

Hard rule: Never post high-res originals online!

Be mindful that, in a court of law there is a standard to be met. The burden of proof isn't on the infringing party to prove anything... the burden is on the legitimate copyright holder to show they own the rights. In the United States the above quote isn't the the burden of proof needed to prove infringement.

The burden of proof isn't on the infringing party to prove anything... the burden is on the legitimate copyright holder to show they own the rights.

...which is the whole point of holding back originals. You can easily prove that you are the creator of the work in question. Letting an expert compare the original to the copy (that the infringer has been using) will then PROVE that it is an infringement. The only way out for the infringer is by proving that he was rightfully using the image, e.g. by presenting a valid licence of some sort, or by showing that he is the original creator. He won't be able to, and will lose the case.

...which is the whole point of holding back originals.

Originals are immaterial at this point. If you don't register your copyright with the copyright office... you have no valid proof of anything.

Defending your copyright is a moot point if you employ methods to stop the infringement in the first place. It's obviously not possible to block all infringement, especially when done by hand, but most of the automated infringement is pretty easily thwarted which will save a ton of time worrying about this mess in the first place.

Being proactive about protecting web content has saved me a ton of time that would've been spent being reactive, meaning block scraping and hot linking to avoid sending DMCAs.

Another way to deal with this mess is to use services like Picscout to automate hunting and I've had some success with TinEye as well.

We wouldn't be having this argument with regard to Pinterest in particular if they had the honesty, morality, and fairness to only use image thumbnails rather than large formats.

Their entire model rests on encouraging their users to infringe on copyright. Why can't they just resize to thumbnails? Problem solved, the ladies can have their fun with recipe thumbnails, cute kitty thumbnails, and high hell shoe thumbnails.

helleborine wrote:
We wouldn't be having this argument with regard to Pinterest in particular if they had the honesty, morality, and fairness to only use image thumbnails rather than large formats.

Their entire model rests on encouraging their users to infringe on copyright. Why can't they just resize to thumbnails? Problem solved, the ladies can have their fun with recipe thumbnails, cute kitty thumbnails, and high hell shoe thumbnails.

Oh come on... there wouldn't be speeders on the highway if cars didn't go faster than the posted speed limit.

There wouldn't be dui problems if alcohol wasn't invented.

If you didn't post large formats online where's the problem?

If you didn't post anything online where's the problem?

If you redirected patrons to a permissions page where's the problem?

If you embedded your images in flash where's the problem?

MY point... maybe your solution is the problem.

It's not "my" solution. It's the legal solution.

Thumbnails have been legislated as FAIR-USE.

"NOT-thumbnail" is NOT-FAIR-USE.

Thumbnails-only the only LEGAL way for Pinterest to operate. Until they shrink all the infringing images (which is 99% of all images), Pinterest is an internet pirate.

It's the legal solution.

1. Hire an attorney then or

2. Get a free legal consultation so you can appreciate what you already know.

In my experience... and what you suggest... you are not interested in your rights.

Your complaint is about wasting your time... start using your money to sue... the infringing parties will not repeat the mistake if they lose ONCE.

No one is taking you serious... because you are not acting seriously.

-OR-

Pinterest could start acting like a legitimate net-citizen.

I'm currently documenting my take-down notices. When I have enough (in a few months, I expect to have an obscene amount), then yes. I will litigate.

It would still be better if Pinterest had the good sense to self-police. For their own good.

But failing that, they WILL face litigation.

Best of luck with your situation, sent you a pm helleborine.

You're wasting your time. Ignore it and move on.