Could Affiliate Links Kill Pinterest?

Pinterest doesn’t want affiliate links pinned. They drew a line in the sand when they first started stripping affiliate information and other variables from Amazon links. More recently, Linkshare affiliates have reported Pinterest stripping links. I haven’t heard whether other affiliate programs are also impacted or not.

While Pinterest seems to be altering destination links to prevent users from making money on pins, the action may be Pinterest’s undoing. Altering links to strip affiliate tracking information represents a modification of material posted by users, which has the potential to put Pinterest on shaky legal ground when it comes time to defend against copyright claims.

DMCA Safe Harbor Protects Service Providers

The way Pinterest, YouTube, and other user generated content sites avoid a constant onslaught of financially debilitating copyright infringement lawsuits is by abiding by DMCA Safe Harbor provisions spelled out in section 512(a) of title 17 of the United States Code. In simple terms, the whole idea of safe harbor is that an online service provider like Pinterest won’t be able to preemptively police every piece of content posted on their service. Because Pinterest and other UGC sites merely transmit the content, they aren’t liable as long as they quickly remove or disable access to material later identified to be infringing by the copyright holder.

In order to be protected by DMCA Safe Harbor, Pinterest must be viewed as a service provider.

In case you haven’t memorized the United States Code, here is title 17 section 512(a):

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if –

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.

Where Could Pinterest Have Problems?

There are two points that could cause Pinterest trouble. 512(a)(2) requires transmission and routing to be carried out through an automatic technical process without selection of the material by the service provider. That’s open to some interpretation, but leaving some data off of a link certainly sounds like selection of the material to me. 512(a)(5) is also noteworthy in the context of Pinterest’s treatment of affiliate links. By stripping affiliate tracking codes from a link, Pinterest is modifying the content originally posted by the person who pinned it.

It seems obvious to me that when Pinterest modifies a pin by altering the structure of a link, they stop being an online service provider facilitating users who share content and become a curator of content actively engaged in changing the way it gets shared. Put another way, changing a link could be construed as a form of editorial control.

Being perceived as an online service provider is an all-or-nothing endeavor. By modifying any content posted by users, Pinterest has the potential to be at risk for all copyright infringing content posted by users. When Pinterest alters a non-infringing pin, Pinterest could be giving image clearinghouses like Getty or Corbis ammunition to file a copyright infringement claim directly against Pinterest.

What Could Pinterest Do Instead?

Pinterest has two more appropriate courses of action for preserving their status as a service provider, though affiliates may like these options even less.

The Pinterest Acceptable Use Policy already states: [You agree not to] “Use the Service for any commercial purpose or the benefit of any third party, except as otherwise explicitly permitted for you by Pinterest or in any manner not permitted by the Terms;”

To properly maintain service provider status in the context of DMCA Safe Harbor provisions, Pinterest should either completely remove pins that violate their policy or ban the users who pin the content in the first place.

Deleting pins creates a different kind problem for Pinterest. Other users may have already Repinned or commented on content with an affiliate link. Deleting the pin removes it for the original user along with everyone else who had no idea there was an affiliate link involved. If users start seeing pins disappear, they might stop using the service.

Pinterest Should Be More Like Twitter

Affiliate links on Pinterest aren’t likely to go away. Pinterest would be smarter to approach them the way Twitter did – letting users police each other. I previously called the idea of trying to stop them a game of whack-a-mole. By modifying the links, Pinterest has increased their exposure to potential copyright infringement issues. By deleting pins or banning users, Pinterest runs the risk of frustrating users. In the long run, Pinterest would be better served to either ignore affiliate activity altogether or work with affiliates interested in using the service.

At the same time, there’s potential the damage is already done. Could a copyright infringement claim use Pinterest’s existing actions against affiliate links as a way to throw out their defense as a service provider?