{"id":420,"date":"2012-11-26T17:52:34","date_gmt":"2012-11-26T17:52:34","guid":{"rendered":"http:\/\/jolt.richmond.edu\/wordpress\/?p=420"},"modified":"2019-03-08T19:52:38","modified_gmt":"2019-03-09T00:52:38","slug":"a-pinteresting-question-is-pinterest-here-to-stay-a-study-in-how-ip-can-help-pinterest-lead-a-revolution","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2012\/11\/26\/a-pinteresting-question-is-pinterest-here-to-stay-a-study-in-how-ip-can-help-pinterest-lead-a-revolution\/","title":{"rendered":"A \u201cPinteresting\u201d Question: Is Pinterest Here to Stay? A Study in How IP Can Help Pinterest Lead a Revolution"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

by Stephanie Chau*<\/p>\n

I.\u00a0 Introduction<\/strong><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Bulletin boards and pushpins are archaic.\u00a0 Yet, each day represents a new paradigm for the technologically savvy.\u00a0 Innovators pair old concepts with new functionalities and technology, often achieving groundbreaking results.\u00a0 Digital counterparts for Post-It notes emerged for computers and other wireless devices.[1]\u00a0 Other examples abound.[2]\u00a0 Thus, it is no surprise that pins and boards also have new meaning in the digital age.\u00a0 Credit is due to the founders of Pinterest, a nascent social networking site with a devoted following, for modernizing the pin.[3]\u00a0 As a newer social networking site, Pinterest has experienced unparalleled growth after its inception only a few years ago.[4]\u00a0 Like all social networking sites, Pinterest thrives in the presence of societal materialism, narcissism, and consumerism.\u00a0 Its subsequent exponential growth is the byproduct of a high-functioning network effect.[5]\u00a0 However, Pinterest has yet to monetize[6] and currently operates in a contentious area of the law.\u00a0 As a result, Pinterest appears to be on the cusp of requiring internal analysis of intellectual property law and its own business model.[7]\u00a0 The case study of Pinterest illustrates the growing pains of a budding start-up company operating, and perhaps profiting, where Internet copyright law lags.\u00a0 It is particularly apposite that Pinterest recently hired Michael Yang, Google\u2019s former deputy general counsel, as head of its legal department.[8]\u00a0 This Article argues that Pinterest\u2019s continued ascent and perhaps even its continued existence hinges on Michael Yang, who must judiciously contour Pinterest\u2019s intellectual property strategy.[9]\u00a0 Pinterest should not only address impending trademark and copyright infringement issues, but also secure additional intellectual property protections and diversify its business.<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This Article explores the possible legal issues Yang will face in his new capacity.\u00a0 Part II introduces the concept behind Pinterest, Part III comments on the legal hazards currently looming given Pinterest\u2019s business strategy, and Part IV offers insight on how Pinterest can leverage its intellectual property rights.<\/p>\n

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II.\u00a0 What is Pinterest and Why Do We Have It?<\/strong><\/h3>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Successful Internet companies bring greater public access to previously limited resources, including libraries, archives, government records, goods, and knowledge.[10]\u00a0 Google-branded services permeate the web, yet freshman companies also compete for a share in the market.[11]\u00a0 Pinterest is one such company in the social networking arena.\u00a0 Pinterest is valued at an estimated $7.7 billion,[12] joining the ranks of competitors such as Facebook at $104 billion,[13] Twitter at $8 billion,[14] LinkedIn at $10 billion,[15] and Instagram at $1 billion.[16]\u00a0 Led by Facebook, social networking accounted for 16.6 percent of all time spent online in the United States in 2011 and will likely become the top online activity in 2012.[17]\u00a0 Pinterest\u2019s traffic is steadily increasing\u2014positioning the site as the third most popular media platform in the United States.[18]\u00a0 Its appeal to college-educated females between the ages of twenty-five and forty-four offers advertisers a demographic, which not only logs an average of eighty-nine minutes a month\u2014far exceeding that of Twitter\u2019s demographic\u2014but is also ready and willing to spend. [19]\u00a0 In fact, ComScore’s “State of the U.S. Internet” report found that Pinterest users spend more money, buy more items, and conduct more transactions than any other demographic in the social network market.[20]<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Launched in March 2010, \u201cPinterest is a virtual pin board;\u201d it is a pin board-style photo-sharing social website that allows users to create and manage theme-based image collections of events, interests, and hobbies.[21]\u00a0 Users cannot only browse their friends\u2019 pin boards for inspiration, but also those of complete strangers.[22]\u00a0 Users can upload images known as \u2018pins,\u2019 save favorites, make comments, and \u2018share\u2019 or \u2018like\u2019 photos.[23]\u00a0 Pinterest encourages users to \u201cplan their weddings, decorate their homes, and share their favorite recipes.\u201d[24]\u00a0 For that reason, it comes as no surprise that Pinterest is a female-centric site.[25]\u00a0 As of 2012, eighty-three percent of its United States users were women.[26]\u00a0 Nevertheless, just as Facebook moved beyond its college student niche, Pinterest may soon find a new, more balanced group of users once it fine-tunes its strategic approach.<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Social networking sites flourish in the face of a narcissistic society.\u00a0 The self-admiration movement gained traction in the 1970s, followed by an explosion in the 1980s and 1990s[27] when unbridled self-indulgence and self-expression grew into \u201ca more extraverted, shallow, and materialistic form of narcissism.\u201d[28]\u00a0 Trends toward self-presentation evolved with cultural norms and new technology, propagated by narcissistic behavior amidst the masses, the presence of Internet social networking sites, and celebrity culture.[29]\u00a0 Scholars attribute the epidemic to indulgent parenting, excessive praise, obsession with rampant celebrity narcissism, and the pursuit of fame.[30]\u00a0 Although narcissists and social networking groups are not coextensive, the two are not mutually exclusive.\u00a0 Social networking sites revel in these narcissistic tendencies and parlay the user\u2019s desire for validation and admiration into an entire platform.\u00a0 A vicious cycle ensues whereby these sites reinforce narcissistic behavior by rewarding the user with more connections or comments, and as those narcissists connect with other narcissists, the behavior mushrooms quid pro quo<\/em>.[31]<\/p>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The United States is also founded on the principles of materialism and consumerism, the natural descendants of free market capitalism, which encourage individuals to endeavor to increase one’s wealth.[32]\u00a0 As a result, Americans have an appetite for purchasing goods that they desire but do not need.[33]\u00a0 Retailers, particularly in the luxury goods market, and social media companies are eager to exploit this consumer extravagance, a lavishness that might otherwise be characterized as an Achilles\u2019 heel.\u00a0 Much like on any other social networking service, brands already have a presence on Pinterest because consumers post and share photos of the product, the logo, or other marketing manifestations.\u00a0 However, controlling consumer sentiment can be a challenge as cease-and-desist letters are virtually ineffective and can cast negative light on the company.[34]\u00a0 On the other hand, given that retailers are a welcome presence on Pinterest, Pinterest has a distinct competitive advantage over Facebook and Twitter.[35]<\/p>\n

 <\/p>\n

III.\u00a0 Musings on the Pinterest Business Model<\/strong><\/h3>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest’s success depends largely on what scholars call “the network effect.”\u00a0 The network effect is the phenomenon by which the utility of a good or service increases as the number of consumers multiplies, and as a result, the monetary value of participation on a network grows exponentially as well.[36]\u00a0 At one end of the network continuum are actual networks, which are communication systems, such as telephones and fax machines, \u201cwhose entire value lies in facilitating interactions\u201d between the customer and the product owners.[37]\u00a0 Pinterest is an actual network and if it can overcome diseconomies of scale and manage tipping,[38] its network will become a tremendous asset.\u00a0 Given the immense growth of Pinterest\u2019s network, Pinterest is now at a crossroads.\u00a0 There are two areas where its business model is deficient and in need of attention by Pinterest\u2019s top executives and general counsel: monetization strategy and copyright issues.\u00a0 Two additional contentious areas, trademark[39] and privacy[40] issues, are beyond the scope of this article.<\/p>\n

A.\u00a0 Pinterest Has No Monetization Strategy<\/strong><\/h3>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Initially, Pinterest must solidify a monetization strategy before it can grow.\u00a0 Although Pinterest\u2019s monetization potential is promising, the company has no formalized strategy as of yet.[41]\u00a0 On its website, Pinterest flatly asserts \u201cmaking money isn\u2019t our top priority right now.\u201d[42]\u00a0 Pinterest is currently \u201cfocused on growing Pinterest and making it more valuable.\u201d[43]\u00a0 While these objectives are laudable, Pinterest already has an extensive following.[44]\u00a0 Dependence on outside investment from entrepreneurs and venture capitalists is not sustainable in the long term and Pinterest must cultivate ways to bring in revenue.<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest\u2019s swift ascent as a major social networking site suggests that Pinterest is unique and has greater potential than even beyond the likes of Facebook and Twitter.\u00a0 A plethora of theories might explain Pinterest\u2019s success.\u00a0 Conceivably, Pinterest\u2019s business model is more adaptable to growth, Pinterest is on a quicker path to monetization than its predecessors, and Pinterest\u2019s entry into the market perfectly coincided with consumer interests.\u00a0 Such rapid growth allows or possibly even demands Pinterest to monetize sooner.\u00a0 Regardless, Pinterest will require resources to stay in vogue and remain competitive with social networking sites that have already monetized their businesses.[45]<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 As consumer attention shifts away from television, radio, magazines, and newspapers, $200 billion in advertising revenues will shift online.[46]\u00a0 Pinterest figures to fight for these advertising revenues with the allure of its primary demographic and its pool of user data.\u00a0 To illustrate, women spend more time social networking than men worldwide.[47] \u00a0Pinterest users spend more time on the site per visit (16 minutes) than on Facebook (12 minutes),[48] and Pinterest users spend more money than others.[49]\u00a0 Accordingly, Pinterest must carefully construct a strategy to leverage its time with this captive audience.\u00a0 In recognition of Pinterest\u2019s reach, retailer Bergdorf Goodman, online crafts marketplace known as Etsy, and others have already incorporated Pinterest into their marketing strategies.[50]<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Google monetizes its services using behavioral advertising, thereby analyzing user profiles to present users with advertisements tailored to the words they search.[51]\u00a0 On Facebook, users volunteer vast amounts of personal data and generate data through their own behavior that in turn, is used to track and tailor advertisements.[52]\u00a0 Harvesting data on users\u2019 interests and online activities is tantamount to \u201can Internet genome project,\u201d which is invaluable to advertisers.[53]\u00a0 However, Google and Facebook serve different purposes and as a result, there exists a demarcation in their approaches to online advertising: Google operates under the theory that human behavior can be reduced to an algorithmic equation whereas Facebook relies on social play and the power of sharing.[54]\u00a0 Pinterest treats the approaches as symbiotic rather than mutually exclusive.<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 Like Google and Facebook, Pinterest has access to vast amounts of consumer information.[55]\u00a0 However, Pinterest focuses less on offering a breadth of services because the entire premise of Pinterest is to share images that reflect a user\u2019s specific interests.\u00a0 Thus, activity on the site arguably reflects user and purchaser preferences far better than either Google or Facebook, which are used to accomplish diverse objectives. \u00a0This detail, coupled with the fact that retailers can advertise on Pinterest with minimal consumer disgruntlement, positions Pinterest well into the retailer strategies.<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition to advertisements, affiliate links can drive monetization.\u00a0 Affiliate links are a form of affiliate marketing, which rewards affiliates for the quantity of web traffic attributed to its marketing efforts.[56]\u00a0 Although many observe that Pinterest is the perfect forum for an affiliate marketer given Pinterest\u2019s high conversion rates,[57] the stigma of affiliate links makes this option less than ideal. \u00a0Recently, Pinterest quietly monetized its pinners with affiliate links through a partnership with Skimlinks[58] whereby Pinterest received a percentage of the revenue every time a pinner clicked to make a purchase from an e-commerce site.[59]\u00a0 The response from the public was not favorable and Pinterest came under heavy fire for engaging in a covert scheme, which led to the decision to quickly end the relationship.[60]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 Alternatively, Pinterest executives could decide to forgo innovation[61] in a monetization strategy completely and instead sell the business to the highest buyer.\u00a0 To achieve the best valuation, Pinterest should focus on network growth and improved functionality.\u00a0 The fruits of Pinterest\u2019s focused efforts would then translate to a competitive advantage for the purchasing company.\u00a0 In doing so, Pinterest could avoid the copyright issue, although that course of action might appear cowardly.\u00a0 Pursuant to this hypothetical, corporate executives and lawyers in the industry ought to take notice and engage in their own monetization and copyright analyses of Pinterest.<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest is currently not making money and thus the first priority is to implement a sound strategy that will enable the company to grow.\u00a0 Not only will operating at a profit enable Pinterest to further develop the site and new functionalities, but Pinterest may be able to fend off competitors as well.\u00a0 Although advertisements may displease users, albeit with perhaps less severity than on other sites, affiliate marketing, if not disclosed, intimates secrecy.\u00a0 Pinterest may also elect to charge users for each click or sell memberships to exclusive material.\u00a0 Indeed, Pinterest executives have the opportunity to formulate an innovative monetization strategy.\u00a0 Although abstract business strategies are generally not patentable,[62] Pinterest can develop processes, systems, and methodologies to analyze and synthesize the data it collects, which can be protected as patentable subject matter or as a trade secret.\u00a0 Part IV will discuss a few additional monetization strategies.<\/p>\n

\u00a0B.\u00a0 Pinterest Leaves Users (and Itself) Exposed to Copyright Liability<\/strong><\/h3>\n

\u00a0\u00a01.\u00a0 User Liability<\/strong><\/h3>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Images are most likely copyrightable subject matter under 17 U.S.C. \u00a7 102(a)(5) as pictorial, graphic, or sculptural works.[63]\u00a0 In order for a plaintiff to establish ownership of a valid copyright, he or she must show an original work of authorship fixed in a tangible medium of expression.[64]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 First, the standard of originality is quite low, and courts interpret the statute to require only a minimal degree of creativity original to the author.[65]\u00a0 Copyright also protects photographs, which enjoy thin protection.[66]\u00a0 Pursuant to this low threshold, a court will likely consider many of the images sufficiently original to the author, who may or may not be the pinner.\u00a0 The second prong demands fixation, which requires that the matter be \u201csufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated.\u201d[67]\u00a0 Given that the image must already exist in digital form for the Pinterest user to upload, pin, or repin the image, it seems unlikely that the fixation hurdle will be significant.\u00a0 Moreover, Pinterest pins remain on boards indefinitely unless removed by the user or if the link is broken.<\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 When Pinterest users upload an image or pin an existing image, there is a definite probability that they do not own the copyright to that image.\u00a0 Suffice it to say that, under the current business model, even absent mens rea, Pinterest users are arguably engaging in a form of copyright infringement for which they might be liable for violating the copyright holder\u2019s reproduction, derivative work, and distribution rights, or perhaps even public display rights.[68]\u00a0 Whereas most of the content on Facebook and Twitter is user-generated, a substantial portion of Pinterest content comes from external links.<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 Many copyright holders may not realize that they own a copyright and may have no intention of enforcing their rights.\u00a0 Nevertheless, Pinterest must address the concerns of users who do not want to face liability for using the site.\u00a0 Moreover, business leaders should be proactive, not reactive and it would behoove Pinterest to think accordingly.\u00a0 Pinterest ought to preemptively plan for a potential copyright infringement claim.<\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 Recently, Pinterest took active steps to alleviate scrutiny on the copyright front.\u00a0 For example, Pinterest began marshalling attribution and direct links to sources, such as Flickr in May 2012.[69]\u00a0 Although these enhancements may allay copyright holders from pursuing litigation, this does not weaken the infringement argument.\u00a0 Although attribution is not currently part of copyright law, perhaps courts should consider attribution in its fair use analysis.\u00a0 With attribution, copyright holders get free publicity and they arguably have no incentive to bring copyright infringement suits.\u00a0 However, attribution may not suffice as fair use given that it does not protect the earning potential of the image.<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest also provides advice for website owners who do not want their website content pinned.\u00a0 Websites can insert a small piece of code to the head of any page on their site so when a user tries to pin from the site, a customizable error message will appear.[70]\u00a0 Nevertheless, Pinterest users can maneuver around this code in a multitude of ways.\u00a0 Even absent technical savvy, users can save the images to their own library, by screen capturing the image for instance, or use a non-Pinterest website as an unsuspecting intermediary between the original site and Pinterest.\u00a0 Website owners who use this code represent a population who does in fact care about copyright liability.\u00a0 Pinterest should therefore be attuned to their concerns as they can wreak havoc on Pinterest users by bringing infringement claims or by raising negative publicity for Pinterest.<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 The fair use defense might be applicable, but courts often apply the defense on a case-by-case basis, evaluating \u201c(1) the purpose and character of the use . . . (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) effect of the use upon the potential market for or value of the copyrighted work.\u201d[71] \u00a0Pinterest boards may qualify under fair use because they are likely transformative: the collections of images combined with captions serve a different purpose than the original, even where they contain entire images.[72]\u00a0 Factors weighing against Pinterest\u2019s fair use include: the high quality of the images, varying levels of commercial use (e.g., corporate pages compared with bloggers), and potential cannibalization of the market for the copyrighted images.[73]<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 However, courts’ current fair use analyses are blind to the copyright holder\u2019s involvement as well as attribution by the infringer, as mentioned earlier.\u00a0 Notably, numerous sites, including profit-driven news sites and retailers, encourage visitors to pin their copyrighted images via a \u201cPin It\u201d button, which invites readers to pin the site\u2019s work onto Pinterest.[74]\u00a0 Where the website recommends that a visitor share the image on Pinterest, and assuming the website is in fact the copyright holder, the visitor is persuasively reasonable in believing the copyright owner will not sue for copyright infringement over use of that image.\u00a0 Applying public policy considerations, a new fair use element might be appropriate where if a copyright owner provides the \u201cPin It\u201d button, either himself or through his agents, he should be barred from subsequently bringing an infringement suit for use of that image.<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 Analysis of the foregoing (the \u201cPin It\u201d button or any comparable form of encouragement by the copyright holder) also bears on the other four elements.\u00a0 Like attribution, the \u201cPin It\u201d button does not protect the earning potential of the image, but it may boost the earning potential of the underlying product itself.\u00a0 Instead of cannibalizing the market, the infringement may effectively improve sales of the product.\u00a0 For instance, a pinned photograph of an article of clothing might help a retailer-copyright holder garner sales of that article, whereas an image of d\u00e9cor or food might have no impact on marketability to the copyright holder.\u00a0 Use of the image on Pinterest can therefore affect two separate markets: the market for the image and the market for the product.\u00a0 Current fair use analysis only considers the market for the image.\u00a0 Although potentially too speculative, perhaps courts could also consider the effect on the market for the product.\u00a0 However, any consideration of the market for the product may undermine Pinterest\u2019s \u201cno self-promotion\u201d policy as well as detract attention from the predominant purpose of copyright law, which is to encourage the creation of original works.\u00a0 In the alternative, if an image pinned through the \u201cPin It\u201d button is not fair use, arguably the courts should find that a copyright holder who puts a \u201cPin It\u201d button on his website grants the pinner either a limited form of consent or a nonexclusive license, which need not be in writing.[75]\u00a0 By finding consent or a license, a court could circumvent an upset of the law on copyright infringement and fair use, at least with respect to the \u201cPin It\u201d Button.<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 Countervailing public policy might also support a Pinterest user\u2019s First Amendment argument.[76]\u00a0 Although Pinterest users may elect to draw upon their freedom of speech guarantees as a policy matter, the First Amendment will not likely be a persuasive argument under case law.\u00a0 After Eldred v. Ashcroft<\/em>[77] and Harper & Row, Publishers, Inc. v. Nation Enterprises<\/em>,[78] the traditional contours are constitutional because proper limits, such as the fair use doctrine and idea-expression dichotomy, are already in place.<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 Finally, as always, the relevant statute of limitations is an important consideration.\u00a0 Copyright holders will have a claim until the statute of limitations lapses.\u00a0 That period will depend on the facts of an individual case.\u00a0 Perhaps there is an argument for shortening the statute of limitations with respect to claiming copyright infringement on social networking sites.\u00a0 Public policies of judicial efficiency and certainty favor such a change, and given the pervasiveness of Pinterest-type file sharing, the court dockets could bottleneck pursuant to a Pinterest user losing.\u00a0 It is within the province of the legislature to consider such changes, but in the meantime, Pinterest users are not immune to allegations of copyright infringement.\u00a0 Whether a court will rule in their favor remains to be seen.<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 Many commentators posit that Pinterest\u2019s hiring of Michael Yang as head of its legal department signals just how critical resolving the copyright question is to the company\u2019s longevity.[79]\u00a0 In the wake of Yang\u2019s hire, Pinterest will likely discuss the ramifications of its current business model to the user and the company itself, perhaps resulting in the modification of its cornerstone image-sharing business.<\/p>\n

\u00a02.\u00a0 Pinterest Liability<\/strong><\/h3>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition to claims against its users for direct infringement, copyright holders may also assert a secondary liability claim against Pinterest.\u00a0 Contributory liability applies to \u201cone who, with knowledge of the infringing activity, induces or causes or materially contributes\u201d to another\u2019s infringement.[80]\u00a0 In Sony Corporation of America v. Universal City Studios, Inc.<\/em>, the Court held a product \u201cneed merely be capable of substantial noninfringing uses\u201d to avoid contributory liability.[81]\u00a0 Given that Pinterest is capable of substantial noninfringing uses, showing that Pinterest had knowledge is not a foregone conclusion.\u00a0 For example, Pinterest users may legally own the content they are uploading, or may have permission from the owner to use the content.<\/p>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 A new inducement doctrine may be more helpful.\u00a0 In MGM Studios Inc. v. Grokster, Ltd.<\/em>, the Court held that \u201cone who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.\u201d[82]\u00a0 Given that Pinterest does not ask users to consider permissions before each pin, its business model is distinguishable from that of Facebook.\u00a0 Moreover, Facebook encourages sharing personal experiences and photos whereas Pinterest encourages sharing content created by others.\u00a0 Just as Grokster distributed free software that allowed users to share electronic files through peer-to-peer networks, Pinterest provides an interface for users to freely share images.[83]\u00a0 Although there are provisions protecting the online service provider (\u201cOSP\u201d),[84] Pinterest must tread carefully to avoid crossing the inducement threshold.<\/p>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 The Digital Millennium Copyright Act (\u201cDMCA\u201d) broadened copyright owners\u2019 rights beyond the Sony<\/em> holding.[85]\u00a0 Title II of the DMCA contains the Online Service Provider Safe Harbor provisions.[86]\u00a0 These provisions insulate OSPs from liability for transmitting, routing, storing, caching, or linking to unauthorized content if the OSP meets specific conditions.[87]\u00a0 It must also meet the following threshold conditions: (1) adopting, implementing, and informing subscribers of policy for providing for termination of users who are repeat copyright infringers; (2) adopting standard technical measures used by copyright owners to identify and protect copyrighted works; and (3) designating an agent to receive notification of claimed infringement from copyright owners and register that agent with the Copyright Office.[88]<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest explicitly addresses the DMCA on its website and describes how Pinterest complies with these provisions.[89]\u00a0 With a prominent Copyright and Trademark Section, Pinterest seeks not only to educate users, but also attempts to protect itself in recognition of the potential for copyright infringement.\u00a0 So long as Pinterest meets the DMCA requirements, Pinterest is only vulnerable to consumer and industry backlash.\u00a0 Conversely, Pinterest\u2019s policy leaves users largely unprotected.<\/p>\n

 <\/p>\n

IV.\u00a0 Shaping Pinterest\u2019s Future<\/strong><\/h3>\n

\u00a0A.\u00a0 If Copyright Holders Win a Case Against a Pinterest User or Pinterest<\/strong><\/h3>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 If Pinterest or its users prevail against a copyright holder in a lawsuit, Pinterest will likely continue business as usual, but copyright law as we know it may forever change.\u00a0 This is especially true if a court decides to hold no infringement or otherwise if pins fall within fair use.\u00a0 Such a decision may significantly weaken copyright law, but given the pervasiveness of pinning and file sharing on the Internet, the law may in fact head in that direction.\u00a0 For this Article, however, only the alternative is considered.<\/p>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 If a Pinterest user loses a case against a copyright holder, the floodgates will open for other copyright holders to pursue similar claims.\u00a0 Disgruntled copyright holders will feel betrayed by the company. \u00a0Users may eschew the system.\u00a0 It will take a complete restructuring of the core business for Pinterest to recover.\u00a0 Timing compounds the pressure on Yang.\u00a0 If a court rules before Pinterest can monetize, Pinterest may lose the opportunity to capitalize on the network it so famously achieved in the last two years.<\/p>\n

[34]\u00a0\u00a0\u00a0\u00a0\u00a0 One incremental change that Pinterest could implement is to start asking the user to consider permissions before each pin.\u00a0 Facebook employs such a method and users can still pin at their own peril.[90]\u00a0 A warning would put users on notice and hopefully deter copyright infringement, but alone it will not be enough to save Pinterest or its users if a court does indeed rule that pinning constitutes infringement.\u00a0 A more drastic measure includes asking the source for permissions to pin or repin.\u00a0 However, this solution would likely be overly burdensome and curb use on the site.\u00a0 Another resolution would be to contract with certain sites to enable Pinterest users to pin from their sites wholly, not just for one pin.\u00a0 However, website owners might ask for remuneration in exchange for allowing their content on the sites.\u00a0 This solution also comes with certain caveats.\u00a0 For example, limiting the available sites undermines the purpose of Pinterest.\u00a0 The ability to share essentially everything is paramount to Pinterest\u2019s appeal.\u00a0 Moreover, Pinterest executives would need to modify its policy against self-promotion.<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0\u00a0 There are also endless ways in which Pinterest could completely revamp or reinvent the business.\u00a0 For instance, Pinterest could become a consumer research company.\u00a0 Pinterest could collect, synthesize and sell data on the newest trends to companies without cluttering its websites with the types of advertisements and affiliate links that consumers disdain.\u00a0 Given that Pinterest already has vast amounts of data at its disposal, all Pinterest would need to do is modify the user agreement.\u00a0 Educating users would be crucial to this strategy and users will only be less hesitant if they know Pinterest is not farming out individual information.\u00a0 This approach exploits the \u201cInternet genome project\u201d as referenced earlier in the Article.\u00a0 Still, entering the arena of consumer research presents challenges for Pinterest.\u00a0 Pinterest would be subject to privacy concerns and public backlash if Pinterest sells data exceeding the threshold granularity that consumers are reasonably willing to provide.<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0\u00a0 If Pinterest loses against a copyright holder for secondary liability it should take the same recourse as it would in the case where a user loses.\u00a0 The impact of such a ruling to Pinterest again intensifies if Pinterest does not monetize quickly enough.\u00a0 If Pinterest remains indebted to venture capitalists and a court rules for Pinterest to pay a judgment, Pinterest will be in danger of losing those backers and the company will have an even bleaker balance sheet.\u00a0 Additionally, if Pinterest has an interest in going public, regardless of its future business strategy, it is true that underwriters, the financial community, and the public will expect Pinterest to possess substantial tangible assets as well as intangible assets, such as intellectual property and goodwill.\u00a0 However, these individuals will find a highly leveraged company in or anticipating litigation even less attractive.<\/p>\n

[37]\u00a0\u00a0\u00a0\u00a0\u00a0 If Pinterest loses a case for violating the DMCA, Pinterest can cure the situation more easily.\u00a0 Put simply, Pinterest would need to adhere to its policies set forth in its Trademark & Copyright Section.[91]\u00a0 If a court finds Pinterest in violation of the DMCA and nothing else, although a strategic change might bolster success in the future, Pinterest should maintain current operations and begin to pursue other markets and consumer bases as suggested in remainder of this Article.<\/p>\n

\u00a0B.\u00a0 Brand Management<\/strong><\/h3>\n

[38]\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest has a registered service mark.[92]\u00a0 Therefore, Pinterest should manage its brand.\u00a0 Pinterest\u2019s brand strategy should include comprehensive analysis of its graphics, marketing efforts, and consumer satisfaction index.\u00a0 Using its official badge and Bello Script font logo developed in 2011, Pinterest could market and sell logo products, thereby gaining additional protection under trademark, trade dress, and design patent law.[93]\u00a0 As evidenced by Pinterest\u2019s office, Pinterest already produces a fair amount of swag.[94]\u00a0 Branding the office space can help corral support and interest in the product, but there is also a market for branded products.\u00a0 Pursuant to this strategy, Pinterest should consider additional trademarks for related words such as \u201cPinterested\u201d and \u201cPinteresting.\u201d\u00a0 Although branded products should probably be a secondary source of income, Pinterest should at least consider the production costs and benefits.<\/p>\n

[39]\u00a0\u00a0\u00a0\u00a0\u00a0 With proper brand management, Pinterest could seamlessly enter new markets, including e-commerce.\u00a0 For instance, Pinterest can develop a Pinterest store and sell special edition items for its top pinners.\u00a0 Although Pinterest discourages self-promotion, Pinterest itself can promote by building partnerships and its brand.\u00a0 In exchange for Pinterest\u2019s endorsement, companies or users can compensate Pinterest.\u00a0 In contrast to affiliate links and advertising, Pinterest\u2019s endorsement would be direct and effectively a seal of approval.\u00a0 However, as a technology company, Pinterest would need to develop the requisite credibility and competency.\u00a0 There would also be an inherent risk of pinners manipulating the pins to become a top pinner.<\/p>\n

[40]\u00a0\u00a0\u00a0\u00a0\u00a0 Once Pinterest enters into e-commerce, the natural progression is to invade mobile commerce.\u00a0 During the three-month period ending in April 2012, almost nineteen million Americans, or 17.4% of American[95] smartphone owners, used their smartphone to purchase consumer goods. \u00a0Of these, almost one in three purchasers used their device to buy clothing or accessories, 23.5% purchased tickets, 22.3% bought electronics or household appliances, 21.2% purchased meals, and 20.2% bought daily deals or discount coupons.[96]\u00a0 On August 14, 2012, Pinterest rolled out new applications for Android smartphones and the iPad in addition to updating its year-old iPhone application with improved functionality.[97]\u00a0 Indeed, Pinterest should continue to stay abreast of mobile commerce trends as it provides yet another medium to reach users.\u00a0 Correspondingly, Pinterest should promptly file patents and claim patent protection or other applicable intellectual property protection for any new inventions or improvements.<\/p>\n

C.\u00a0 International Growth<\/strong><\/h3>\n

[41]\u00a0\u00a0\u00a0\u00a0\u00a0 Finally, although the United States still represents enormous potential for Pinterest,[98] Pinterest will reach a saturation point domestically at some point.\u00a0 Therefore, Pinterest should continue its growth across the globe.\u00a0 Between May 2011 and January 2012, Germany drew 67,000 individual visitors, an increase of over 2956 percent.[99] \u00a0Spain came in a close second with 62,000 individuals, for an increase of 1,348 percent.[100]\u00a0 The United Kingdom had the largest market with 245,000 unique visitors in January 2012.[101]\u00a0 In addition to English, Pinterest has Spanish and Portuguese language sites.[102]\u00a0 On August 24, 2012, Pinterest rolled out its German and Dutch sites.[103]\u00a0 Aptly, Pinterest seems attuned to consumer needs.\u00a0 The integration of these two new languages is consistent with the consumer trends in European usage reported earlier in the year.[104]\u00a0 With some tweaks for cultural differences, Internet companies often find additional success in international markets[105] and many of the same growth strategies domestically can translate to gains in an international arena.<\/p>\n

 <\/p>\n

V.\u00a0 Conclusion<\/strong><\/h3>\n

[42]\u00a0\u00a0\u00a0\u00a0\u00a0 Pinterest capitalizes on societal narcissism, materialism, and consumerism, but its strategy has not paid dividends yet.\u00a0 Pinterest must act quickly to monetize its growing network, not only to become self-reliant and fund R&D for future growth, but also to preempt future lawsuits that could spell the end for Pinterest.\u00a0 Although Pinterest faces potential trademark and privacy concerns, its greatest challenge is in the area of copyright.\u00a0 Executives and lawyers across the industry ought to consider Pinterest a \u201cgame changer\u201d in this respect.\u00a0 The courts have not yet ruled on whether the type of file sharing Pinterest users engage in will incur liability.\u00a0 If the courts find no liability, a new paradigm in copyright liability will emerge and Pinterest will be there to lead the charge.\u00a0 However, if copyright holders are successful in showing either direct infringement by Pinterest users or secondary liability by Pinterest, recovery will be extremely costly, not to mention difficult from a public relations perspective.\u00a0 Not only will Pinterest need to revamp its business model, but its debt will only rise.\u00a0 Regardless, Pinterest should profit from the assets it does have, namely its brand and its network.\u00a0 Pinterest should obtain intellectual property protection for these assets to help penetrate other markets, such as commerce and research, both domestically and internationally.<\/p>\n

[43]\u00a0\u00a0\u00a0\u00a0\u00a0 With bated breath, the world waits.\u00a0 Will the copyright landscape change?\u00a0 Will Pinterest reinvent the pin again?\u00a0 Will Pinterest become a stalwart by resolving the copyright question or will it fade into obscurity like so many other Internet start-ups?\u00a0 We already know Pinterest is no ordinary start-up.\u00a0 Indeed, Pinterest experienced unprecedented growth yet its impact on society remains to be seen.\u00a0 While Ben Silbermann is Pinterest\u2019s Chief Executive Officer and will determine the company\u2019s strategic direction,[106] it will be Yang who advises Pinterest as the company struggles to overcome its legal woes.\u00a0 Batter\u2019s up, Yang, and the clock is ticking.<\/p>\n

<\/div>\n
\n
\n

*J.D. Candidate 2013, University of San Diego School of Law, and Lead Articles Editor for the San Diego International Law Journal.\u00a0 She would like to thank Professor Ted Sichelman and the Richmond Journal of Law and Technology <\/em>editors for their guidance on this Article.\u00a0 A special thank you goes to her family for their continued support.<\/p>\n

 <\/p>\n

[1] See <\/em>Keith Dsouza, 11 Free and Useful Sticky Notes (Sticky Pad) Software for Your Desktop<\/em>, Techie Buzz (May 20, 2008), http:\/\/techie-buzz.com\/softwares\/11-useful-and-free-sticky-notes-sticky-pad-softwares-for-your-desktop.html.<\/p>\n

[2] See <\/em>Leander Kahney, Apple Lets Cat Out of the Bag<\/em>, Wired (June 29, 2004), http:\/\/www.wired.com\/gadgets\/mac\/news\/2004\/06\/64024 (discussing the anticipated release of the Mac OS X 10.4 version, and highlighting that \u201c<\/em>the system will summon a range of accessory apps — including weather, world clocks, a calendar and sticky notes — and dismiss them with a single keyboard button\u201d).<\/p>\n<\/div>\n

\n

\u00a0[3] See<\/em> Team<\/em>, Pinterest, http:\/\/pinterest.com\/about\/team\u00a0 (last visited Oct. 5, 2012).<\/p>\n<\/div>\n

\n

\u00a0[4] See <\/em>Reb Carlson, Why Pinterest Is Like No Other Social Network<\/em>, 360i Blog (Dec. 5, 2011), http:\/\/blog.360i.com\/social-marketing\/pinterest-brands (\u201c[U]nique visitors increased from 418,000 in May [2011] to 3.3 million in October [2011], meaning traffic increased for this site sevenfold in five months alone.\u201d); see also Careers<\/em>, Pinterest, http:\/\/pinterest.com\/about\/careers\/ (\u201cPinterest is one of the fastest growing social services in the world.\u201d) (last visited Sept. 12, 2012).<\/p>\n<\/div>\n

\n

\u00a0[5] See<\/em> Carlson, supra<\/em> note 4 (\u201cBeyond its impressive growth over a year, Pinterest has also emerged as a very new type of platform when it comes to the way people engage with content in its community.\u201d).<\/p>\n<\/div>\n

\n

\u00a0[6] See<\/em>Owen Thomas,Uh Oh! Amazon Researchers Say Pinterest Doesn’t Generate A Lot Of Sales<\/em>,Bus. Insider (Aug. 28, 2012), http:\/\/www.businessinsider.com\/zappos-labs-pinterest-monetize-2012-8 (indicating that this lack of monetization \u201cis a big problem for Pinterest, because the whole idea of the site is that it’s supposed to be better at monetizing social activity than Twitter or Facebook.\u201d); see also <\/em>Carlson, supra<\/em> note 4 (\u201cThere is no paid advertising or media (yet), so all engagement has been purely organic.\u201d).<\/p>\n<\/div>\n

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[7] See Copyright & Trademark<\/em>, Pinterest, http:\/\/pinterest.com\/about\/copyright\/ (last visited Sept. 29, 2012).<\/p>\n<\/div>\n

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\u00a0[8] Nicholas Carlson, Pinterest Just Hired a Big Name Lawyer From Google to Deal With One of Its Biggest Threats<\/em>, Bus. Insider (June 8, 2012), http:\/\/www.businessinsider.com\/pinterest-just-hired-a-big-name-lawyer-from-google-to-deal-with-one-of-its-biggest-threats-2012-6?op=1. Yang\u2019s prior experience at Google includes dealing with several high profile controversies. \u00a0Id.<\/em> \u00a0In particular, Yang handled issues with Google Chrome\u2019s terms of service in 2008 and Buzz in 2010, and further acted as Google\u2019s spokesperson, defending a new privacy policy in Washington, D.C. in 2012.\u00a0 Id.<\/em><\/p>\n<\/div>\n

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\u00a0[9] See<\/em> Matt McGee, Pinterest Hires Away A Google Attorney To Start Its Own Legal Department<\/em>, Marketing Land (June 8, 2012 7:04 P.M.), http:\/\/marketingland.com\/pinterest-hires-away-google-attorney-13702; Carlson, supra<\/em> note 4 (\u201cPinterest faces a serious legal challenge in its future: a huge portion of the content hosted on the site is copyrighted content, posted without the consent or even knowlege [sic] of the copyright owners.\u201d).<\/p>\n<\/div>\n

\n

\u00a0[10] Siva Vaidhyanathan, The Googlization of Everything (And Why We Should Worry) 2 (2011) (\u201cGoogle puts previously unimaginable sources at our fingertips – huge libraries, archives, warehouses of government records, troves of goods, the coming and goings of whole swaths of humanity.\u201d).<\/p>\n<\/div>\n

\n

\u00a0[11] Id.<\/em><\/p>\n<\/div>\n

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\u00a0[12] Debra Borchardt, Pinterest is a $7.7 Billion Company<\/em>, Forbes (Apr. 16, 2012), http:\/\/www.forbes.com\/sites\/thestreet\/2012\/04\/16\/pinterest-is-a-7-7-billion-company\/.<\/p>\n<\/div>\n

\n

\u00a0[13] See<\/em> Bruce Watson, Facebook IPO Valuation Sets Record: Is It Really Worth $104 Billion?<\/em>,Daily Fin. (May 17, 2012), http:\/\/www.dailyfinance.com\/2012\/05\/17\/facebooks-ipo-valuation-sets-record-is-it-really-worth-104-bi\/. Underwriters set a price that valued Facebook at $104 billion, but that valuation has come under fire since Facebook\u2019s Initial Public Offering on May 17, 2012.\u00a0 Lee Spears & Sarah Frier, Facebook Told Regulators IPO Range Was Near Fair Value<\/em>, Bloomberg (June 15, 2012), http:\/\/www.bloomberg.com\/news\/2012-06-15\/facebook-told-regulators-ipo-range-was-near-fair-value.html.<\/p>\n<\/div>\n

\n

\u00a0[14] Borchardt, supra<\/em> note 12.<\/p>\n<\/div>\n

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\u00a0[15] Id.<\/em><\/p>\n<\/div>\n

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\u00a0[16] Id.<\/em><\/p>\n<\/div>\n

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\u00a0[17] Facebook-Led Social Media Market is Redefining Communication in the Digital and Physical Worlds<\/em>, ComScore Data Mine (Feb. 20, 2012), http:\/\/www.comscoredatamine.com\/2012\/02\/facebook-led-social-media-market-is-redefining-communication-in-the-digital-and-physical-worlds\/.<\/p>\n<\/div>\n

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[18] Todd Wasserman, Pinterest is Now the No. 3 Social Network in the U.S.<\/em>, Mashable.com (Apr. 6, 2012), http:\/\/mashable.com\/2012\/04\/06\/pinterest-number-3-social-network\/.<\/p>\n

[19] Borchardt, supra<\/em> note 12.<\/p>\n<\/div>\n

\n

\u00a0[20] Salvatore Rodriguez, Pinterest grew more than 4,000% in one year, report says<\/em>, Los Angeles Times (June 15, 2012), http:\/\/www.latimes.com\/business\/technology\/la-fi-tn-pinterest-4000-percent-20120615,0,756408.story.<\/p>\n<\/div>\n

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\u00a0[21] What is Pinterest?<\/em>, Pinterest, http:\/\/pinterest.com\/about\/ (last visited July 8, 2012).<\/p>\n<\/div>\n

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\u00a0[22] Getting Started<\/em>, Pinterest, http:\/\/pinterest.com\/about\/help\/ (last visited July 8, 2012).<\/p>\n<\/div>\n

\n

\u00a0[23] Pinning 101<\/em>, Pinterest, http:\/\/pinterest.com\/about\/help (last visited Oct. 5, 2012).<\/p>\n<\/div>\n

\n

\u00a0[24] Id.<\/em><\/p>\n<\/div>\n

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\u00a0[25] Umika Pidaparthy, Pinterest not manly enough for you? Try these sites, bro<\/em>, CNN.com (June 22, 2012), http:\/\/www.cnn.com\/2012\/06\/22\/tech\/web\/manly-alternatives-pinterest\/index.html.<\/p>\n<\/div>\n

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\u00a0[26] Id.<\/em><\/p>\n<\/div>\n

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\u00a0[27] See <\/em>Daniel Altman, United States of Narcissism<\/em>, The Daily Beast (July 17, 2011), http:\/\/www.thedailybeast.com\/newsweek\/2011\/07\/17\/narcissism-is-on-the-rise-in-america.html.<\/p>\n<\/div>\n

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\u00a0[28] Jean Twenge, The Narcissism Epidemic: Living in the Age of Entitlement 4, 67-68 (2009).<\/p>\n<\/div>\n

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\u00a0[29] See id.<\/em> at 38.<\/p>\n<\/div>\n

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\u00a0[30] See generally id.<\/em> at 73-108.<\/p>\n<\/div>\n

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\u00a0[31] See id.<\/em> at 111.<\/p>\n<\/div>\n

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\u00a0[32] Cf.<\/em> Brooke Overby, Contract, in the Age of Sustainable Consumption<\/em>, 27 J. Corp. L. 603, 626-27 (2002).<\/p>\n<\/div>\n

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\u00a0[33] See <\/em>Alex Woolf, Consumerism 10 (2004).<\/p>\n<\/div>\n

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\u00a0[34] See <\/em>David Kirkpatrick, The Facebook Effect: The Inside Story of the Company That is Connecting the World 263-64 (2010).<\/p>\n<\/div>\n

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\u00a0[35] See<\/em> Borchardt, supra<\/em> note 12.<\/p>\n<\/div>\n

\n

\u00a0[36] See <\/em>Mark Lemley & David McGowan, Legal Implications of Network Economic Effects<\/em>, 86 Calif. L. Rev. 479, 483, 594\u201398 (1998) (distinguishing network effects from general positive externalities (e.g., where education confers social benefits all those in the classroom), economies of scale (where the effect is on the supply rather than the demand side), path dependence (the tendency of history to influence present decision-making), models of collective behavior, and otherwise exclusionary behavior).<\/p>\n<\/div>\n

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\u00a0[37] See id.<\/em> at 488, 491\u201394 (noting that lesser forms of network effects include virtual networks (which provide value that increases with the number of additional users of identical and\/or interoperable goods) and positive feedback effects (where value increases even where the goods are not themselves connections to a network and do not interoperate with like goods)).<\/p>\n<\/div>\n

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\u00a0[38] Id.<\/em> at 496 (defining \u201c\u2018[t]ipping\u2019 . . . [as] the tendency of one system to pull away from its rivals in popularity once it has gained an initial edge.\u201d).<\/p>\n<\/div>\n

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\u00a0[39] Given that Pinterest has a registered trademark, the mark has protection under the Lanham Act.\u00a0 On August 31, 2012, Pinterest filed a complaint against a Chinese trademark applicant Qian Jin for trademark infringement; Jin filed applications in March 2012 for the use of \u201c\u2018Pinterest\u2019 and \u2018Pinterests\u2019 for hotel and food services and for advertising and marketing.\u201d\u00a0 Victoria Slind-Flor, Google, Louboutin, Pinterest, Cengage: Intellectual Property,<\/em> Businessweek.com (Sept. 6, 2012), http:\/\/www.businessweek.com\/news\/2012-09-06\/google-louboutin-pinterest-cengage-intellectual-property.\u00a0 In addition to trademark infringement, Pinterest alleges cyberpiracy, trademark dilution and cybersquatting, that is, \u201cbad-faith registration and use of numerous domain names containing, or confusingly similar to, Pinterest\u2019s famous and federally registered PINTEREST trademark.\u201d\u00a0 Dara Kerr, Pinterest Gives Legal Punch to \u2018Serial Cybersquatter,\u2019<\/em> cnet (Sept. 5, 2012, 7:26 PM), http:\/\/news.cnet.com\/8301-1023_3-57507046-93\/pinterest-gives-legal-punch-to-serial-cybersquatter\/.\u00a0 In addition to protecting its mark, Pinterest must not facilitate the infringement of other marks.\u00a0 Pinterest\u2019s trademark policy pointedly states that \u201c[a]ccounts with usernames, Pin Board names, or any other content that misleads others or violates another\u2019s trademark may be updated, transferred, or permanently suspended.\u201d\u00a0 Copyright & Trademark<\/em>, supra<\/em> note 7.\u00a0 Although Pinterest acknowledges potential for infringement, dilution, or false advertising, its policy leaves users with little guidance on what might lead to violation of one\u2019s trademark.\u00a0 One report \u201cestimates that brand squatting on Pinterest affects 90 percent of top brands,\u201d such as FedEx, Coca Cola, McDonald\u2019s and Dell PC.\u00a0 Lauren Rae Orsini, Pinterest\u2019s New Problem: Brand Squatters Are Screwing Over Big Companies<\/em>, Bus. Insider (Mar. 16, 2012), http:\/\/articles.businessinsider.com\/2012-03-16\/tech\/31199459_1_pinterest-users-brands-board-names.\u00a0 Whereas Twitter and Facebook have already addressed \u201ctrademark infringement and impersonation [of] brands and celebrities,\u201d Pinterest has yet \u201cto regulate who has the rights to a username.\u201d\u00a0 Id.<\/em>\u00a0 Pinterest may also be liable for indirect or contributory infringement.<\/p>\n<\/div>\n

\n

\u00a0[40] Although internet companies may claim to give users substantial control over how their actions and preferences are collected and used, the reality is that users are at the mercy of these companies, and user choices mean very little; given the amount of surveillance and tracking companies engage in, the privacy policies and infrastructure stack the odds against an unsuspecting or even educated user.\u00a0 See, e.g.<\/em>, Vaidhyanathan, supra<\/em> note 10, at 84 (examining Google\u2019s privacy policy, or lack thereof).<\/p>\n<\/div>\n

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\u00a0[41] Sarah E. Needleman & Pui-Wing Tam, Pinterest\u2019s Rite of Passage\u2013Huge Traffic, No Revenue<\/em>, Wall St. J. (Feb. 16, 2012), http:\/\/online.wsj.com\/article\/SB10001424052970204792404577225124053638952.html.<\/p>\n<\/div>\n

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\u00a0<\/em>[42] Pinning 101<\/em>, Pinterest, http:\/\/pinterest.com\/about\/help\/ (last visited Sept. 30, 2012).<\/p>\n<\/div>\n

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\u00a0[43] Id.<\/em><\/p>\n<\/div>\n

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[44] Jeremy Cabalona, Interest in Pinterest Reaches a Fever Pitch [INFOGRAPHIC]<\/em>, Mashable (Apr. 29, 2012), http:\/\/mashable.com\/2012\/04\/29\/pinterest-interest\/.<\/p>\n

[45] See<\/em> Bill Gurley, How to Monetize a Social Network: MySpace and Facebook Should Follow TenCent<\/em>, Abovethecrowd.com (Mar. 9, 2009), http:\/\/abovethecrowd.com\/2009\/03\/09\/how-to-monetize-a-social-network-myspace-and-facebook-should-follow-tencent\/.<\/p>\n<\/div>\n

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\u00a0[46] Kirkpatrick, supra<\/em> note 34, at 272.<\/p>\n<\/div>\n

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\u00a0[47] Women Spend More Time Social Networking than Men Worldwide<\/em>, comScore Data Mine (Dec. 22, 2011), http:\/\/www.comscoredatamine.com\/2011\/12\/women-spend-more-time-social-networking-than-men-worldwide\/.<\/p>\n<\/div>\n

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\u00a0[48] See 12 Things You Need to Know About Pinterest for Business<\/em>, Webranx.com (Sept. 4, 2012), http:\/\/webranx.com\/12-things-you-need-to-know-about-pinterest-for-business\/.<\/p>\n<\/div>\n

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\u00a0[49]\u00a0 Kristin Piombino, Pinterest users spend more money than Facebook, Twitter users<\/em>, ragan (Sept. 13, 2012), http:\/\/www.ragan.com\/Main\/Articles\/Pinterest_users_spend_more_money_than_Facebook_Twi_45513.aspx.<\/p>\n<\/div>\n

\n

\u00a0<\/em>[50] Needleman & Tam, supra<\/em> note 41.<\/p>\n<\/div>\n

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\u00a0[51] Michelle Singletary, New Privacy Police Lets Google Watch You \u2013 Everywhere<\/em>, Wash. Post (Mar. 3, 2012), available at<\/em> http:\/\/www.washingtonpost.com\/new-privacy-policy-lets-google-watch-you–everywhere\/2012\/02\/27\/gIQAdyscpR_story.html.<\/p>\n<\/div>\n

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\u00a0[52] Kirkpatrick, supra<\/em> note 34, at 266.<\/p>\n<\/div>\n

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\u00a0[53] Id.<\/em> at 267.<\/p>\n<\/div>\n

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[54] Peter Pham, Pinners and Losers<\/em>, The Motley Fool (July 11, 2012), http:\/\/beta.fool.com\/peterpham8\/2012\/07\/11\/pinners-and-losers\/6835\/.<\/p>\n

[55] Scott Brave, Pinterest, We\u2019ve Got a Business Model for You,<\/em> GigaOm (Mar. 24, 2012), http:\/\/gigaom.com\/2012\/03\/24\/pinterest-weve-got-a-business-model-for-you\/.<\/p>\n<\/div>\n

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\u00a0[56] Jennifer Heidt White, Safe Haven No More: How Online Affiliate Marketing Programs Can Minimize New State Sales Tax Liability<\/em>, 5 Shidler J. L. Com. & Tech. 21, 1 (2009) (describing affiliate market models).<\/p>\n<\/div>\n

\n

\u00a0[57] Conversion rate measures the number of users who made retail purchasers after clicking on Pinterest\u2019s link.\u00a0 Although Pinterest\u2019s traffic does not convert as well (1.02%) as Google search traffic (1.62%) or Facebook (1.13%), its potential is huge.\u00a0 Nicholas Carlson, This Stat Reveals the Incredible Potential of Pinterest \u2013 and Why Amazon, Google, or Facebook Should Buy It<\/em>, Bus. Insider (July 11, 2012), http:\/\/www.businessinsider.com\/this-stat-reveals-the-incredible-potential-of-pinterest–and-why-amazon-google-or-facebook-should-buy-it-2012-7.<\/p>\n<\/div>\n

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\u00a0[58] Laurie Segall, Pinterest Quietly Profits Off Its Users Links<\/em>, CNN Money (Feb. 10, 2012), http:\/\/money.cnn.com\/2012\/02\/10\/technology\/pinterest_affiliate_links\/index.htm.<\/p>\n<\/div>\n

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\u00a0[59] Samantha Murphy, Pinterest Partner: Yes, They\u2019re Making Money from Pins,<\/em> Mashable (Feb. 8, 2012), http:\/\/mashable.com\/2012\/02\/08\/pinterest-affiliated-links\/.<\/p>\n<\/div>\n

\n

\u00a0[60] Matt McGee, Pinterest Drops Skimlinks, Might Try Ads; Says Copyright Issues Not a Significant Issue Yet<\/em>, Marketing Land (Feb. 16, 2012), http:\/\/marketingland.com\/pinterest-skimlinks-might-try-ads-copyright-issues-not-significant-6213.<\/p>\n<\/div>\n

\n

\u00a0[61] Theodore Levitt, Innovative Imitation<\/em>, Harv. Bus. Rev., at 63 (Sept. 1966), available at<\/em> http:\/\/hbr.org\/1966\/09\/innovative-imitation\/ar\/1?conversationId=3535176 (noting that innovation furnishes \u201c(1) newness in the sense that something has never been done before, and (2) newness in that it has not been done before by the industry or by the company now doing it\u201d).<\/p>\n<\/div>\n

\n

\u00a0[62] See, e.g.<\/em>, Bilski v. Kappos, 130 S. Ct. 3218, 3228, 3231 (2010) (holding that a method for hedging risk in the commodities market was not patentable subject matter; still, a patent-eligible process may include some methods of doing business).<\/p>\n<\/div>\n

\n

\u00a0[63] 17 U.S.C. \u00a7 102(a)(5) (2006).<\/p>\n<\/div>\n

\n

\u00a0[64] 17 U.S.C. \u00a7 102(a) (2006).\u00a0 Although relevant, the statute does not require formalities today.\u00a0 See id.<\/em><\/p>\n<\/div>\n

\n

[65] See <\/em>Feist Publ\u2019n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-48 (1991) (holding that a directory that contains absolutely no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement).<\/p>\n

[66] See, e.g.<\/em>, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 55 (1884) (holding that a photograph by Sarony deserved copyright protection given that Sarony arranged the subject matter, lighting and composition).<\/p>\n<\/div>\n

\n

\u00a0[67] 17 U.S.C. \u00a7 101 (2006).<\/p>\n<\/div>\n

\n

\u00a0[68] Cf.<\/em> Michelle Sherman, To Pin or Not To Pin: How Businesses Can Use Pinterest and Reduce Their Legal Risks of Copyright Infringement<\/em>, 17 Cyberspace L. 3, 5 (Apr. 2012) (noting that Pinterest user instructions \u201cdo not say anything about paying a royalty to the original creator or getting their permission in advance to use their image on Pinterest\u201d).<\/p>\n<\/div>\n

\n

\u00a0[69] More Attribution and Inline Play<\/em>, Pinterest (June 20, 2012), http:\/\/blog.pinterest.com\/post\/31433290094\/more-attribution-and-inline-play (\u201cIn May, we announced that content from some of the Web\u2019s biggest creative communities\u2014Flickr, YouTube, Behance, and Vimeo\u2014will be clearly, consistently and automatically credited when pinned to Pinterest. Today, we\u2019re thrilled to announce that photos from 500px, handcrafted and vintage items from Etsy, videos from Kickstarter, presentations from SlideShare, and sounds from SoundCloud will all show the same attribution.\u201d).<\/p>\n<\/div>\n

\n

\u00a0[70] Aaron, Comment to Instant Answers<\/em>, Pinterest (Mar. 6, 2012, 9:41 AM), https:\/\/support.pinterest.com\/entries\/21101932-what-if-i-don-t-want-images-from-my-site-to-be-pinned.<\/p>\n<\/div>\n

\n

\u00a0[71] 17 U.S.C. \u00a7 107 (2006).<\/p>\n<\/div>\n

\n

\u00a0[72] Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007) (holding that Google\u2019s use of thumbnails was transformative fair use because it improved access to information on the Internet versus artistic expression); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615 (2d Cir. 2006) (holding that even though the images were reproduced in their entirety, the images were displayed in a reduced size and scattered among many other images and text so as to ensure the reader\u2019s identification of the posters as historical artifacts; notwithstanding the creative nature of the posters, publishers\u2019 use of the posters in biographical book was transformative).<\/p>\n<\/div>\n

\n

\u00a0[73] 17 U.S.C. \u00a7 107 (2006); see, e.g.<\/em>, Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560-68 (1985).<\/p>\n<\/div>\n

\n

\u00a0[74] See generally<\/em> Goodies<\/em>, Pinterest, http:\/\/pinterest.com\/about\/goodies\/ (last visited Sept. 28, 2012) (explaining the \u201cPin It\u201d button).<\/p>\n<\/div>\n

\n

[75] Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008); cf. <\/em>17 U.S.C. \u00a7 204 (2006) (requiring an exclusive license to be in writing).<\/p>\n

[76] Cf. <\/em>U.S. Const. amend. I (describing the freedom of speech guarantees granted by the First Amendment).<\/p>\n<\/div>\n

\n

\u00a0[77] Eldred v. Ashcroft, 537 U.S. 186, 221 (2003) (stating that \u201c[t]o the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them\u201d).<\/p>\n<\/div>\n

\n

\u00a0[78] Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560, 595 (1985) (holding that \u201cFirst Amendment protections [are] already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use,\u201d while refusing to expand the doctrine of fair use to create what amounts to a public figure exception to copyright).<\/p>\n<\/div>\n

\n

\u00a0[79] See <\/em>Carlson, supra<\/em> note 4.<\/p>\n<\/div>\n

\n

\u00a0[80] Gershwin Publ\u2019g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2nd Cir. 1971).<\/p>\n<\/div>\n

\n

\u00a0[81] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).<\/p>\n<\/div>\n

\n

\u00a0[82] Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 919 (2005).<\/p>\n<\/div>\n

\n

\u00a0[83] Id. <\/em>at 913; see <\/em>Jonathon Bailey, The Great Pinterest Divide: To Opt Out or Not<\/em>, Plagiarism Today (Feb. 23, 2012), http:\/\/www.plagiarismtoday.com\/2012\/02\/23\/the-great-pinterest-divide-to-opt-out-or-not (likening the file sharing in Grokster<\/em> to the image sharing on Pinterest and noting that \u201csince Pinterest is actively encouraging pinning of images found on \u2018any\u2019 website and their business model relies on widespread infringement, it could be liable\u201d under the Grokster<\/em> test as an inducer of copyright infringement).<\/p>\n<\/div>\n

\n

\u00a0[84] See generally <\/em>17 U.S.C. \u00a7 512 (2006).<\/p>\n<\/div>\n

\n

\u00a0[85] See generally id.<\/em> \u00a7 1201 (2006); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).<\/p>\n<\/div>\n

\n

[86]\u00a0 17 U.S.C. \u00a7 512 (2006).<\/p>\n

[87] Id. <\/em>\u00a7 512(c)(2).<\/p>\n<\/div>\n

\n

\u00a0[88]Id.<\/em> \u00a7 512(i)(1)(A)-(B), (c)(2).<\/p>\n<\/div>\n

\n

\u00a0[89] Copyright & Trademark<\/em>, supra<\/em> note 7.<\/p>\n<\/div>\n

\n

[90] See Privacy Settings<\/em>, Facebook, http:\/\/www.facebook.com\/about\/privacy\/(providing a privacy setting that requires the content owner\u2019s permission when other users attempt to tag them or their content) (last visited Oct. 1, 2012); see also<\/em> Statement of Rights and Responsibilities<\/em>, Facebook, https:\/\/www.facebook.com\/legal\/terms (requiring users to agree not to \u201cpost content or take any action on Facebook that infringes or violates someone else’s rights,\u201d permitting Facebook to remove any infringing content without notice, and providing a mechanism whereby users can report intellectual property infringement) (last visited Oct. 1, 2012).<\/p>\n<\/div>\n

\n

[91] Copyright & Trademark, supra <\/em>note 7.<\/p>\n

[92] PINTEREST, Registration No. 4,145,087.<\/p>\n<\/div>\n

\n

[93] See<\/em> 15 U.S.C. \u00a7 1051 (2006); see also id.<\/em> \u00a7 1125; 35 U.S.C. \u00a7 171 (2006).<\/p>\n

[94] The Daily Muse, Check Out Pinterest\u2019s Palo Alto Office, Where Employees Get Weekly Happy Hours, Hackathons, and Fan Swag<\/em>, Bus. Insider (June 5, 2012), http:\/\/www.businessinsider.com\/pinterest-office-tour-2012-6?op=1.<\/p>\n<\/div>\n

\n

[95] Smartphone Shoppers: Top 10 On Device Purchase Categories<\/em>, ComScore Data Mine (June 4, 2012), http:\/\/www.comscoredatamine.com\/2012\/06\/smartphone-shoppers-top-10-on-device-purchase-categories.<\/p>\n<\/div>\n

\n

\u00a0[96] Id.<\/em><\/p>\n

[97] Introducing Pinterest for Android, iPad and iPhone<\/em>, Pinterest (Aug. 14, 2012), http:\/\/blog.pinterest.com\/post\/29392054155\/introducing-pinterest-for-android-ipad-and-iphone.<\/p>\n<\/div>\n

\n

\u00a0[98] Pinterest announced open registration on August 8, 2012.\u00a0 As a result, new users do not need to rely on their Facebook or Twitter connections to send them an invite; they need only provide an email address to register.\u00a0 Open Registration!<\/em>, Pinterest (Aug. 8, 2012), http:\/\/blog.pinterest.com\/post\/29389668300\/open-registration.<\/p>\n<\/div>\n

\n

\u00a0[99] Is Pinterest the Next Big Social Network in Europe?<\/em>, ComScore Data Mine (Feb. 22, 2012), http:\/\/www.comscoredatamine.com\/2012\/02\/is-pinterest-the-next-big-social-network-in-europe\/.<\/p>\n<\/div>\n

\n

\u00a0[100] Id.<\/em><\/p>\n<\/div>\n

\n

\u00a0[101] Id.<\/em><\/p>\n<\/div>\n

\n

\u00a0[102] Pinterest ya est\u00e1 disponible en m\u00e1s idiomas<\/em>, Pinterest (June 28, 2012), http:\/\/blog.pinterest.com\/post\/29389582593\/pinterest-ya-esta-disponible-en-mas-idiomas.<\/p>\n<\/div>\n

\n

\u00a0[103] Pinterest in German and Dutch!<\/em>, Pinterest (Aug. 24, 2012), http:\/\/blog.pinterest.com\/post\/30114400670\/pinterest-in-german-and-dutch.<\/p>\n<\/div>\n

\n

\u00a0[104] See Is Pinterest the Next Big Social Network in Europe?<\/em>, supra<\/em> note 99.<\/p>\n<\/div>\n

\n

\u00a0[105] Cf. <\/em>Emily Lambert, When a Faux Pas Can Really Cost You<\/em>, Forbes (Aug. 12, 2004), http:\/\/www.forbes.com\/2004\/08\/12\/cz_el_0812globalmanners.html.<\/p>\n<\/div>\n

\n

[106] Heather Kelly, Pinterest releases new iPad and Android apps<\/em>, CNNTech (Aug. 15, 2012), http:\/\/www.cnn.com\/2012\/08\/15\/tech\/mobile\/pinterest-mobile-apps-android-ipad\/index.html (quoting Silbermann who said \u201c\u2019our goal is to actually get you offline, to get you to go out\u2019\u201d).<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Download PDF by Stephanie Chau* I.\u00a0 Introduction [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Bulletin boards and pushpins are archaic.\u00a0 Yet, each day represents a new paradigm for the technologically savvy.\u00a0 Innovators pair old concepts with new functionalities and technology, often achieving groundbreaking results.\u00a0 Digital counterparts for Post-It notes emerged for computers and other wireless devices.[1]\u00a0 Other examples abound.[2]\u00a0 Thus, it […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-420","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-6M","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/420","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=420"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/420\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=420"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=420"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=420"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}