Pinterest is the hot hot hot social media site that lets users create online “pinboards” of interesting or inspiring images. Although users may upload their own images to their pinboards, Pinterest emphasizes the pinning of images from third-party Web sites through the use of inline links.

This of course generates yet a new series of online copyright issues. Although Pinterest can drive traffic to the third-party sites, and some content owners are happy about that, the love of Pinterest is not universal. Many believe that traffic coming from Pinterest as a result of their images being pinned on the site is minimal. One commentator has referred to Pinterest as “the new Napster” and suggested that 99% of the “pins” on the site are in violation of the site’s Terms of Service (requiring the user to have right to “pin” an image.)

Pinterest announced in February that it had implemented a technological measure to address copyright concerns, the “nopin” tag. The code, when implemented on a content-owner’s Web site, blocks attempts to pin that site’s images via inline linking. When a Pinterest user attempts to pin an image from the target site, the code generates a message informing the Pinterest user that the target site doesn’t allowing pinning. (Note that the “nopin” code does not inhibit the ability of a Pinterest user to download an image from a target site and then upload the image to Pinterest as the user’s own image.)

The availability of the “nopin” tag raises many legal issues. Does a site have an obligation to use the “nopin” tag to prevent pinning of its images?  Does the failure to use the tag constitute the grant of an implied license to pin?  What role do the restrictions on use found in the target site’s terms and conditions play in all of this?  Could the failure to deploy a “nopin” tag impair a copyright holder’s ability to utilize the DMCA takedown procedure to remove infringing images from Pinterest?

Although many copyright holders would quickly say “no, of course I do not have an obligation to use the nopin tag,” it is interesting to look at a similar issue that has been litigated in the context of the “robots.txt” protocol. The robots.txt protocol allows site owners to indicate whether, and to what extent, they consent to having their sites crawled and cached by Web crawlers and spiders that are utilized not only by major search engines like Google and Yahoo! but also by price comparison sites or even the competitors of the crawled sites.

In Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 2006), a claim of copyright infringement stemming from search engine crawling and caching was rejected based upon the lack of a robots.txt file on the copyright owner’s site. The court concluded that the content owner’s knowing failure to deploy a robots.txt file that said “no” to crawling and caching had given search engines an implied license to crawl and cache. It should be noted that the court believed the plaintiff had deliberately invited the crawling and caching and was acting in less than good faith.  However, a similar result was reached on more balanced facts in Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 26, 2008). In neither of these cases did the courts consider the crawled sites’ terms of use, if any.

Is the failure to use robots.txt a grant of an implied license to spider and cache? Could the failure to deploy the nopin tag similarly be considered the grant of an implied license?  If so, when the non-deploying copyright holder sends a DMCA takedown notice, could Pinterest or the user argue that they were acting pursuant to an implied license (and thus the notice was improper)?  To the extent that the terms of use prohibit commercial use or linking, would that be viewed as superseded by the site’s failure to deploy the “nopin” tag?

There is a very significant difference between Pinterest’s “nopin” code and the robots.txt protocol, at least at the present time. The robots.txt protocol is a long-established and widely accepted standard acknowledged by Web professionals. The courts in Field v. Google and Parker v. Yahoo! both relied on the widespread acceptance of the robots.txt protocol in their rulings. The Pinterest “nopin” code, however, is being promulgated unilaterally by a single Web site operator with an obvious interest in putting the burden on content owners to take action to protect their content. But given the widespread popularity of Pinterest, and the inevitable launch of numerous copycat sites with similar nopin-type codes, this type of code has the potential to develop into a de facto standard for controlling content sharing.

The interplay between codes like “nopin,” the robots.txt precedent, the doctrine of implied licensing, the DMCA and the role of Web site terms of use, is likely to receive increased legal attention and could be the basis of some interesting litigation in the near future.