Pinterest might facilitate copyright infringement
One of the attractions of Pinterest is how easy it is to use. But management attorneys caution that it makes breaking copyright law easy too.
“Pinterest just makes it so easy, without even requesting uploads (as sites such as YouTube or Instagram do), that the infringement can happen instantly and unthinkingly,” remarked Jonathan Ezor, assistant professor of law and director of the Institute for Business, Law and Technology at the Touro Law Center in Central Islip, N.Y.
Large companies such as the Gap and Nordstrom might use Pinterest as an online referral source. Gap has its own themed pin boards such as “Denim Icons” and “Everybody in Gap.” And if the images are owned by the company, the pinning should be fine.
But when others’ images are pinned, “the copyright issues that arise include both direct and indirect infringement under the Copyright Act,” said Jonathan Pink, an attorney with Bryan Cave in Santa Monica, Calif. Though he said the chances of being sued are low, any employee using Pinterest for work purposes might be liable for direct infringement, and the employer might be liable for direct or indirect infringement, he cautioned.
Pink spoke about the copyright risks of Pinterest at a May 23, 2012, meeting of the American Bar Association Copyright & New Technologies Committee. He noted that Pinterest is a pinboard-style social photo-sharing website that lets users create and manage theme-based image collections, such as travel, fashion, recipes and architecture. Pinners can browse other pinboards, repin images to their own and “like” photos.
According to Pinterest, the site “lets you organize and share all the beautiful things you find on the web.”
Its rise in popularity has been meteoric. Since its beta launch in March 2010, it has grown to more than 13 million unique visits per week, making it one of the 10 most popular social media websites. In addition, Time magazine listed Pinterest as among its 50 best websites of 2011.
Blog post goes viral
The lawfulness of Pinterest pins and repins wasn’t questioned much until a blog post by Kirsten Kowalski, an attorney in Alpharetta, Ga., went viral in February 2012. In her blog post she explained why she believed that Pinterest usage often violates copyright law.
Pink said that in response Pinterest released a “nopin” HTML metatag to let websites opt out of having their images pinned. And in March 2012, Pinterest updated its terms of service, rescinding a policy that frowned on self-promotion and reversing the company’s claim to ownership over all posts, he added.
Pink cautioned that most users are not getting permission to use an image when they pin or repin. “Absent permission from the author, or unless the work is in the public domain, anything taken—or even repinned—will constitute an infringement of the author’s exclusive rights to reproduce and distribute that work,” he noted.
In March 2012, Pinterest released a statement saying it was protected by the Digital Millennium Copyright Act, Pink added. This theory hasn’t been tested in the courts to date.
He said users’ possible defenses for pinning copyrighted material include:
• The Copyright Act is not equipped to address the complexity of new media.
• Fair use is supposed to strike a balance between an artist’s right to control work and the public’s need for access to creative works.
• The argument that posting images accompanied by commentary constitutes the social, political and aesthetic exchange of ideas that the fair use doctrine is designed to encourage.
Pink said that pinners can avoid violating copyright laws by obtaining permission to republish from the copyright owner, taking an image in the public domain, transforming the image sufficiently so that a fair use defense might apply and creating the image to be pinned themselves. Also, photos on websites posted by the copyright owner that state expressly “Pin This” or “Share” should constitute permission for that photo to be posted.
Pinterest provides that it “respects the intellectual property rights of others and expects its users to do the same,” Pink observed. But he cautioned that linking back to the original source might not be enough.
“Unfortunately, there is an overall lack of understanding of copyright among businesspeople at all levels, whether involving Pinterest or other uses of third-party materials,” Ezor said. “Sometimes, a company only learns about copyright law when it is accused of violating it.”
Allen Smith, J.D., is manager, workplace law content, for SHRM.
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AZEK pavers alleviate stormwater runoff issues
AZEK VAST Pavers, now available nationally through pro lumberyards and building supply centers, had announced a welcome option to assist with stormwater runoff problems that offers great looks and durability. Brought to landscape contractors and DIYers through a strategic partnership between AZEK Building Products and VAST Enterprises, the product line’s Permeable paver in 4-in. by 8-in. size is designed to help alleviate residential and commercial stormwater runoff issues.
Made with up to 95% recycled scrap tires and various plastics, AZEK VAST Permeable Pavers install on an innovative grid system up to three times faster than traditional masonry pavers, according to AZEK. They are uniquely designed to reduce rain runoff into storm drains and decrease storm water pollutants by infiltrating rainwater on building sites. The pavers have a tested infiltration rate of more than 450 inches per hour (4.9 gallons per square foot per minute) when installed with aggregate conforming to ASTM D448 No. 8.
According to Michael Gori, director of product management for AZEK Building Products, "With the beauty of traditional hardscapes, AZEK VAST Permeable pavers in 4-in. by 8-in. size are preferred by landscape architects and contractors for stormwater applications in large commercial jobs, including plazas and walkways, but work equally well for residential patios and driveways."
AZEK VAST Permeable Pavers are slip-resistant and manufactured with spacer lugs that are engineered to maintain a precise 0.275-in. space between pavers. This ensures that they can be installed according to ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) # 302.3, which calls for such spaces to be no greater than one-half inch wide. Impact- and slip-resistant , they are easier on the feet than concrete or clay pavers. Like all AZEK products, AZEK VAST Permeable Pavers are engineered to last, featuring a lifetime no-crack guarantee for residential installations.
The AZEK VAST grids (manufactured of the same recycled materials as the pavers) are laid out on the same type of sub-base required for landscape or permeable pavers made of concrete. Installers insert the pavers into the grids and the pavers are automatically aligned. Once the sub-base is prepared, the pavers are installed on the grid to form the desired pattern quickly and easily.
The pavers are available in five colors.
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NLRB urged to overturn retail micro-union certification
The Retail Litigation Center (RLC) and the Retail Industry Leaders Association (RILA) jointly submitted an amicus curiae brief to the National Labor Relations Board (NLRB) in support of Bergdorf Goodman’s appeal of an NLRB regional director’s recognition of a micro-union at a New York store location.
Last month, the NLRB region 2 director ruled that the Bergdorf Goodman women’s shoe departments on the second and fifth floor constituted a valid bargaining unit. The ruling relied upon the controversial 2011 NLRB decision in Specialty Healthcare, which redefined the standard for bargaining unit determinations, ostensibly only for a limited sector. Nonetheless, the decision is being broadly applied, contrary to well-settled law and with fantastical results such as the two-shoe department unit ratified here.
According to the brief, “Longstanding Board precedent makes this an easy case. The regional director’s decision must be reversed because it does not comport with the well-established rule that created a presumption in favor of the whole-store union in the retail context. This whole-store presumption has been repeatedly applied, across the past half-century, to reject far more inclusive proposed units of retail employees than the two-shoe departments in this case.”
The concept of micro-unions emerged from the NLRB’s August 2011 Specialty Healthcare decision. The new definition of a proper bargaining unit allows union organizers to gerrymander a workplace by cherry-picking small groups of employees within a larger work force that might not otherwise agree to union representation in order to form a micro-union.
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