We recently wrote about the questionable copyright implications of using Pinterest to “pin” images and videos to the site and to share these items with other Pinterest users. What we didn’t deal with in that post is the consequential threat facing Pinterest users that has persuaded at least one photographer and lawyer to delete her boards (collections on Pinterest). The threat comes from an often overlooked clause which has potentially severe implications considering the copyright issues facing Pinterest users:
You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.
In terms of this clause you agree to cover Pinterest’s creator, Cold Brew Labs and all the categories of people specified in the clause, in the event it is sued or suffers some sort of loss due to your use of or access to the site; if your content gives rise to a claim or you violate Pinterest’s Terms. So what does this mean? It means that if, by using Pinterest to pin photos and videos, you infringe on someone’s copyright (or even where your use is legitimate and Pinterest’s use isn’t), Pinterest can invoke its indemnity and call on you to cover its losses and costs. The way the clause is worded, Pinterest’s ability to invoke the indemnity isn’t limited to instances where you actually infringed copyright or did something to otherwise violate a 3rd party’s rights. It can be invoked if the losses simply flow from your use of or access to the site or your pins.
As with virtually any social service on the Web the question is how real the risk is that this could happen and you could find yourself dragged into court in the Northern District of California to defend yourself against a claim for losses and costs where this indemnity clause is invoked? It may seem implausible but consider that a number of content creators are pretty concerned about Pinterest users sharing their content without their permission. It may not be too long before we begin to see the first lawsuits emerge and, at that point, users will have to wait and see if the indemnity is invoked and their lives changed because of a whimsical share.