Toasted moose doots and the problem with Pinterest

UPDATED 3/23/12:   Pinterest just announced revised TOS, to go into effect in two weeks (4/6/12), that seem to correct the most egregious problems under the current regime.  I'll be waiting to see what my favorite intellectual property wonks have to say about the changes.

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect to the opinions of mankind require that they should get some sleep.  Because I have been up for two nights now, declaring independence, … and it just doesn’t make sense to sit here scrawling away these compound-complex sentences when I just know nobody’s going to read them, because nobody ever does read all the way through these legal documents. Take leases.  You take the average tenants, and you could put a lease in front of them with a clause about halfway through stating that they have to eat toasted moose doots from breakfast, and I guarantee you they’ll never read it.  Not that it would make any difference if they did, because tenants ignore most of the rules anyway, such as the rules about not flushing inappropriate objects down the toilet. … I know one landlord who found a gerbil in there. Who the hell would do a thing like that? A cat, yes.  I could see that.  I could see giving a modest rebate for that.  But not a gerbil.  I gotta lie down.

--The Declaration of Independence
(lightly abridged, emphases added),
as recorded in Dave Berry Slept Here: 
A Sort of History of the United States,
 a very funny book that you should
buy and read right now.

When I first read about the copyright concerns with the new social media darling Pinterest, I shrugged them off.  Because, while Pinterest doesn’t have an indisputable case for fair use in its appropriation of third party-content, I figured it was probably close enough that it would get there with maybe a few tweaks, and it would inevitably make those tweaks sooner or later, so there probably wasn’t anything to worry about.

Then my cousin Jessica, pinner extraordinaire, drew my attention to the problems with the Pinterest terms of service, and I was appalled to discover that the ass-covering legalese in the Pinterest TOS are fundamentally at odds with the basic functioning and culture of the Pinterest website.  The contradiction between the small print in the terms of the service and the large print in the friendly “Getting Started” section is not just sneaky, it is dishonest.

I didn’t read the terms of service when I signed up for Pinterest.  You probably didn’t either.  Virtually no one does.  I was the kid who, when I went skiing for the first time, actually read the entire one-page ski rental agreement (the one which said at the top, in 36-point type, “READ THIS BEFORE SIGNING,” and which said at the bottom, “please ask us if you have any questions”).  I had a question, so I asked, which absolutely stunned the person at the ski rental counter, because I was apparently the first person in the history of the ski resort to read the ski rental agreement.  But today I routinely click “accept” on terms of service for various internet-based services and software products without reading them (sometimes I’ll skim over them, sometimes not even that), because if I read them all I’d never get anything done.

And yes, I know, ignorance of the TOS is no excuse; I really ought not agree to these terms without knowing what I’m getting myself into.  But here’s the thing: I (and you, and virtually everyone else) assume that the TOS basically cohere to the way the service or product works.  When I accept TOS without reading them carefully, I’m vaguely aware that I’m probably giving up some privacy rights which, if the terms were actually open to negotiation rather than being a take-it-or-leave-it proposition, I would rather not give up.  But I accept that as part of the cost of living on the internet, and because sharing personal information is an integral part of the way things like facebook and twitter work, so I might grumble if these organizations don’t give me as fine-grained control over my personal information as I might like, but I don’t get so upset that I cancel my accounts.

It’s reasonable for companies to put conditions in the TOS that fit with the way their products work.  Apartments become uninhabitable if their toilets are clogged, so it’s reasonable for landlords to demand that tenants not put inappropriate objects down toilets.  Pinterest has a stated goal of cultivating an atmosphere that excludes “hateful content,” so it’s reasonable for Pinterest to reserve the right to remove pins that are deemed objectionable to the community.  Even if people haven’t read all the way through the legal document that sets out these rules, when they learn about them, they can see that they make sense with the way the thing in question works.

It is not reasonable for companies to put conditions in the TOS that are either ridiculous and irrelevant or, worse, fundamentally in contradiction to the way their products work.  Eating toasted moose doots has nothing to do with responsibly inhabiting an apartment, so it would be absurd (and, I dearly hope, unenforceable) to insist upon it as a condition for renting a particular place. 

But the Pinterest case is more egregious than that – a rough analogy might be if an apartment was advertised as a residential unit with two bedrooms and a full bath, and the landlord showed prospective tenants around, pointing out the bedrooms and bath, and then hid a clause in the middle of the lease subjecting the tenants to substantial fines if they do not obtain written permission from a third party whenever they sleep in the bedrooms or take a bath.  It is fundamental to the way Pinterest works for users to “pin” content from third parties without securing permission, and a clause in the TOS that states that the act of pinning is tantamount to asserting that you have obtained such permission does not undo this.  The construction and culture of Pinterest militate against sharing only things for which you have properly secured all relevant rights, so users, I think, have a right to be ticked off when they discover that this is what the TOS demands, even if they didn’t read all the way through the terms of service in the first place.

Chances are, if you behave yourself and keep your head down, you won't run afoul of the cowardly and deceptive liability dodge under Pinterest's terms of service as they presently stand.  But this discussion from the Artists Bill of Rights points out that Pinterest has other major problems that it needs to clean up if it is going to be a good citizen in the social media community.  I'm mildly hopeful that the outcry will prompt the company to change some of its terms and procedures to be more respectful of both users and content creators; until then, I'm opting out.

ETA: This timely post from Lifehaker seems salient: How to Quickly Read a Terms of Service.


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