Feature

Social Media in the Digital Millennium

Julie Nichols Matthews, Leslie A. Nettleford, Noah M. Priluck, Joshua L. Simmons, And Brian Sites

©2013. Published in Landslide, Vol. 5, No. 5, May/June 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

On January 12, 2006, Dave Gorman, an English author and comic,1 posted a set of photographs on the photo-sharing website Flickr.2 The photographs were of street artist Eine’s alphabetical graffiti on store shutters. Gorman took the photographs over a period of several days while “cycling around the East End of London.”3 By October 11, 2007, the photographs had received over 150,000 views, numerous comments, and several links from external websites.4

Approximately six years later, on February 17, 2012, Gorman received notification that his photographs had been taken down as a result of a Digital Millennium Copyright Act (DMCA) notice.5 Gorman, believing the DMCA notice had been issued in error, issued a counternotification requesting that his photographs be reposted on the website. After the 14-day waiting period, the sender of the original notice had not responded and Flickr permitted Gorman to repost his photographs. Flickr did not, however, restore Gorman’s original posting, which evidently had been deleted. Instead, Gorman was required to create a new posting for his photographs. As a result, Gorman allegedly lost all of the goodwill and social media elements that had existed on his original posting, including the comments on the photographs and the records of his page views. In addition, the links that originally resolved to Gorman’s photographs were broken.6

Gorman’s story is a common one for users of social media. When the DMCA was signed into law in 1998,7 social media was still nascent, as was much of the World Wide Web. As a result, the legislation could not and did not take into account the drastic shift in online culture that would occur in the following 15 years. Today, social media users, copyright holders, Internet service providers, and courts continue to wrestle with the consequences of the system established in simpler times.

User-Generated Content and the DMCA

The section of the DMCA that is most relevant to the affairs of social media is § 512(c), which sets forth a safe harbor for service providers for copyright infringement by virtue of a user’s storage of material on the service provider’s system or network.8 To qualify for the safe harbor, however, a service provider must meet certain requirements—a discussion of which is beyond the scope of this article.9 In addition, the service provider must not have actual knowledge of infringing activity or awareness of “facts or circumstances from which infringing activity is apparent,” or upon obtaining knowledge or awareness fail to act “expeditiously” to remove or to disable the material.10 Similarly, the service provider must not receive a financial benefit from the infringing activity and must take down material when a DMCA notice is issued.11

Recent Developments in DMCA and Social Media Jurisprudence

We begin with a review of recent case law involving the DMCA and social media, as these cases likely will shape future decisions in this area.

Viacom International, Inc. v. YouTube, Inc.

In 2012, the Second Circuit handed down its highly anticipated opinion in Viacom International, Inc. v. YouTube, Inc.,12 which will have far-reaching effects on social media. The case involved two lawsuits by content-owner plaintiffs alleging that YouTube, Inc., YouTube, LLC, and Google, Inc. (collectively, YouTube) infringed their copyrights, both directly and indirectly, as a result of the public performance, public display, and reproduction of roughly 79,000 audiovisual clips on YouTube’s website between 2005 and 2008.

In 2010, the U.S. District Court for the Southern District of New York granted summary judgment to YouTube on all claims based on the DMCA’s § 512(c) safe harbor13 that, as mentioned, limits service providers’ liability for infringement in certain circumstances for information residing on systems or networks at the direction of users.14

On appeal, the Second Circuit affirmed that § 512(c)(1)(A) requires knowledge or awareness of facts or circumstances indicating specific and identifiable instances of infringement.15 The court vacated the district court’s opinion because a reasonable jury could have concluded that YouTube had knowledge or awareness as to some clips and remanded to determine whether YouTube had such knowledge or awareness.16 The court also determined that the common law principle of willful blindness may be applied under certain circumstances to demonstrate knowledge or awareness of specific instances of infringement and remanded for consideration of willful blindness.17 Inasmuch as the district court required item-specific knowledge of infringement regarding the “right and ability to control” infringing activity under § 512(c)(1)(B), the court reversed and remanded for fact-finding on control and financial benefit issues.18 Finally, the court determined that three of the four YouTube software functions—technologies regarding related videos, replication, and playback—occurred by reason of storage at the direction of a user under § 512(c)(1), but the court remanded for further fact-finding regarding a fourth technology—the syndication of clips to third parties.19

Although the Second Circuit’s opinion largely follows prior precedent, the court broke with then-existing Ninth Circuit precedent regarding a service provider’s “right and ability to control” under § 512(c)(1)(B). In its now withdrawn opinion in UMG Recordings, Inc. v. Shelter Capital Partners LLC, the Ninth Circuit had determined that item-specific knowledge of infringing activity was required to demonstrate a service provider’s right and ability to control infringement.20 The Second Circuit rejected this interpretation as duplicative of § 512(c)(1)(A).21 Instead, the court relied on a series of district court cases to determine that the right and ability to control infringement requires less than item-specific knowledge but “something more” than the ability to remove or block access to posted materials.22 The court provided examples of cases involving a service provider exerting “substantial influence” on the activities of users without necessarily acquiring knowledge of specific infringing activity.23

After granting a petition for rehearing in the Shelter Capital case, the Ninth Circuit, among other important changes, adopted the Second Circuit’s interpretation of the right and ability to control and explicitly held that to have the right and ability to control, the service provider must exert substantial influence on the activities of users.24

Ultimately, upon remand—in a decision issued after the in-print version of this article was sent to be published—the U.S. District Court for the Southern District of New York again granted summary judgment to YouTube on all claims based on the DMCA’s § 512(c) safe harbor.25

Wolk v. Kodak Imaging Network, Inc.

In a similar case, Wolk v. Kodak Imaging Network, Inc., decided prior to the Second Circuit’s YouTube decision, the Southern District of New York held that Photobucket could not be held liable for infringing the plaintiff’s work because it fell within the § 512(c) safe harbor.26 Photobucket is a photo-sharing service provider that allows users to upload content to be stored or viewed on its website. Photobucket does not charge users of the website, instead receiving the majority of its income from third-party advertising revenue.27

First, the court determined that Photobucket satisfied the threshold requirements to qualify for the safe harbor. It reasoned that Photobucket met the DMCA’s definition of a service provider because, like YouTube, it hosts users’ content and allows them to share that content at their own direction.28 Photobucket also adopted and reasonably implemented a policy for the termination in appropriate circumstances of users who are repeat infringers, as it has a takedown policy; when it received the plaintiff’s takedown notices, it acted to remove the infringing material.29 The plaintiff alleged that Photobucket did not meet the third threshold requirement—that it “accommodate[] and . . . not interfere with standard technical measures” used by copyright owners to identify or protect copyrighted works—because it provided photo-editing tools that “allow[ed] users to obliterate, hide or crop out the copyright watermarks on the electronic images uploaded” to its website.30 The court, however, found no evidence that Photobucket advised or encouraged users to use the tools for that purpose. It also determined that the fact that certain images on the website continued to contain watermarks suggested that Photobucket did accommodate such measures.31

Second, the court found that Photobucket did not have actual knowledge of infringing activity and that it was not aware of any fact from which infringing activity was apparent. There was no evidence that Photobucket had “actual or constructive knowledge” of the plaintiff’s alleged copyright infringement.32 In addition, the court found that 11 of the plaintiff’s takedown notices were not DMCA-compliant and thus did not provide Photobucket with constructive knowledge of the infringement.33 Moreover, although the plaintiff alleged that one notice of infringement should be sufficient to apply to all instances of that image appearing on Photobucket’s website, the court held that “[n]otices that do not identify the specific location of the alleged infringement are not sufficient to confer ‘actual knowledge’ on the service provider.”34 Where the plaintiff did provide Photobucket with DMCA-compliant notices, the evidence showed that Photobucket expeditiously took down the infringing material.35

Third, the court further determined that Photobucket did not have the right and ability to control the infringements and did not receive a direct financial benefit from them. It found that to have the right and ability to control infringements, Photobucket would have needed to prescreen users’ content, which it did not do.36 The court also found that Photobucket did not attract or retain subscriptions based on the infringement; rather, Photobucket’s profits were derived from the service it provided, not a particular infringement.37

Finally, the court concluded that Photobucket complied with the remaining DMCA requirements, including removing content expeditiously and registering a DMCA agent with the U.S. Copyright Office.38

Flava Works, Inc. v. Gunter

In a similar vein to users sharing images on Photobucket, social video bookmarking websites are also becoming increasingly popular. One such bookmarking site is myVidster.com. Users at myVidster “collect” videos—essentially creating a gallery of links to their favorite clips from across the Web—and then share that gallery with others.39 When someone clicks on one of the videos in a user’s gallery, the video plays on myVidster’s site instead of taking the viewer to the website where the clip is actually hosted (for example, YouTube.com).40 The actual underlying video file is not on myVidster’s server, however; instead, it remains on the third-party website.41 Anyone can sign up and collect videos on myVidster for free; until recently, a user could also store copies of videos on myVidster’s server for a fee.42

In October 2010, Flava Works, a company that produces and distributes adult entertainment products including videos and online content, sued myVidster in the Northern District of Illinois.43 Flava Works alleged that myVidster was infringing Flava Works’ intellectual property rights under a number of legal theories, including various copyright infringement claims. The district court ultimately agreed and issued a preliminary injunction against myVidster on Flava Works’ contributory infringement theory.44 The court’s decision turned largely on myVidster’s failure to develop a satisfactory repeat infringer policy and its incomplete cooperation with the plaintiff’s DMCA takedown notices.45

The Seventh Circuit vacated on appeal.46 Writing for the court, Judge Posner concluded that the district court applied the wrong standard in issuing a preliminary injunction and should not have presumed that irreparable injury existed simply because myVidster was infringing Flava Works’ copyrights.47 The preliminary injunction analysis did not, the Seventh Circuit held, “boil[] down to a single factor—the plaintiff’s likelihood of success [on its claims].”48 Nevertheless, the parties had confined their discussion to that likelihood, and thus the Seventh Circuit proceeded to discuss it at length.

First, the court concluded that viewers clicking on links in myVidster’s galleries were not infringing Flava Works’ copyrights, and thus myVidster could not be contributorily liable for the viewers’ noninfringing actions.49 The court went on to note there was no doubt that, “by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income.”50 Still, the court reasoned, “unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.”51 The court concluded that myVidster did not need to resort to the DMCA’s safe harbors because the company had no liability from which to seek refuge.52

The court similarly rejected the theory that myVidster was inducing copyright infringement and Flava Works’ public performance right claim. In reaching the latter conclusion, the court interpreted the public performances of Flava Works’ videos as occurring at the time that a user uploaded the infringing video instead of each time viewers clicked on a link to watch that video.53 The court also held that myVidster’s social bookmarking galleries were dissimilar from a swap meet54 or file-sharing program.55

Accordingly, the court vacated the preliminary injunction while tipping its hat toward Congress in hopes of “[l]egislative clarification of the public-performance provision of the Copyright Act.”56 In closing, the court noted that Flava Works might ultimately be entitled to a preliminary injunction “if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights,” and remanded for further proceedings.57 It remains to be seen how Flava Works will fare on remand and, more importantly for the Web at large, what impact Flava Works will have for social bookmarking and other social media websites in future cases.58

Looking toward Future DMCA Effects on Social Media

These court decisions offer several key takeaways for individuals or companies with vested interests in social media.

Tweet Takedowns

While one might not think that Twitter, the social media website that enables users to send and read 140-character or less text messages, would confront the DMCA on a regular basis, the reality is that Twitter is frequently the subject of DMCA notices. In fact, since January 1, 2012, Twitter has received no fewer than 6,646 DMCA notices resulting in the removal of over 10,000 tweets.59 Twitter has voluntarily disclosed the actual text of these notices on the website ChillingEffects.org, which is a joint project of various organizations that catalog cease and desist letters and DMCA notices.60

Based on our review of the notices Twitter has made publicly available, the most frequently alleged act of infringement is the posting of links to infringing content. Many social media users may be unaware that the simple act of posting a link to an unauthorized reproduction of copyrighted material may constitute infringement and result in the issuance of a DMCA notice.61 Examples of links taken down as a result of DMCA notices run the gamut. In one example, a Harlequin romance writer complained that a Twitter user posted the torrent address for illegal downloads of her novel.62 Similarly, the British Broadcasting Company issued a DMCA notice for a tweet linked to a website that linked to another website where an episode of Top Gear was illegally available for download.63

Although these takedowns have gone largely unreported, it is clear that there has been extensive activity in this area and that copyright protectors are increasingly taking aggressive action. This area is also likely to get more attention due to the September 2012 lawsuit filed by artist Christopher Boffoli claiming that Twitter allowed its users to publish and display unlicensed copies of his photographs.64 Known for his “giant food” pictures—depictions of miniature sculpted people comically juxtaposed with various kinds of food—Boffoli alleged in his complaint that Twitter had failed to remove these infringing reproductions of his images despite his issuance of four DMCA notices informing Twitter of the copyright infringement.65 Interestingly, the uses Boffoli claimed were infringing included not only links to third-party websites but photographs that were hosted on Twitter’s own servers.66 By late October, however, Twitter users seeking the alleged infringing images were met with a note that indicated that the media they were seeking could not be displayed and that the content had been removed in response to a copyright holder’s request.67 The case was voluntarily dismissed by Boffoli on October 25, 2012.68 Accordingly, the question of whether the social media website would have been held liable under the DMCA has been left unanswered. Interestingly, Boffoli targeted only Twitter in his lawsuit. We are not aware of any complaints that were filed against the individuals he claimed reproduced his work without authorization. Nonetheless, for Twitter users, the main takeaway is to maintain the same level of caution that they use in other media and be aware that copyright owners may notice their tweets and take action.

Seemingly in response to the Boffoli suit, Twitter officially changed its takedown policy on November 2, 2012. Instead of “removing” tweets that are alleged to violate copyright laws, Twitter is now “withholding” them. Previously, Twitter would delete such tweets and only manually repost them after receipt of a valid response to the claim of infringement. The new policy notifies users that a tweet is being withheld in response to a report from the copyright holder.69 This keeps the Twitter timeline intact and provides an opportunity for more accountability and transparency. Users can still file a counternotice if they believe the content was withheld in error.70

The Pinterest Controversy

In comparison to the relatively small amount of reporting concerning Twitter, Pinterest—a social media platform that encourages users to “[c]ollect and organize the things you love”71—has created a great deal of controversy during the past year. With millions of unique visitors each month, Pinterest is one of the most popular social media websites today.

In essence, Pinterest is an online bulletin board that encourages users to “pin” (post) interesting photographs, images, and other content to themed boards on personalized pages that other Pinterest users and Internet users can view. Once a user pins an image on a board, other Pinterest users can view it, comment on it, click on a link to the source of the image, “like” or “tweet” the image, embed the image on another blog, or re-pin it on their own Pinterest board.72 While this may sound innocuous at first blush, what has made Pinterest intriguing for legal scholars and commentators is that the company’s business model is based on users’ posting and sharing copyrighted content on a massive scale.

Early commentators expressed concern that Pinterest was facilitating widespread copyright infringement and, not surprisingly, professional photographers and businesses that rely on licensing revenue from photographs have been vocal critics of Pinterest.73 Some of these stakeholders publicly announced that they were pulling their Pinterest boards for fear of liability for copyright infringement and proceeded to do so. Others have criticized the company for operating a website that arguably leaves users vulnerable to copyright infringement claims, while attempting to shield itself from liability under the DMCA safe harbor provisions.74

Pinterest has responded to scrutiny from commentators and users alike by revising its Terms of Service in an attempt to make them more user-friendly and reflective of the rights users own in their posted content.75 However, even the latest Terms of Service, implemented in April 2012, have done little to quell concerns about legal risks inherent in posting and sharing third-party photographs and content on the website.76 The terms grant Pinterest a broad license to use user content and state that users are solely responsible for activities on their accounts and posted content.77 Users agree under the terms that they own or have the necessary permissions to post, upload, submit, and transmit content on the site and that the use of such content on the site will not violate any law or third-party intellectual property right.78 Pinterest expressly disclaims all liability arising out of user content, and users agree to indemnify and hold harmless Pinterest for any liability arising out of user-posted content or in any way related to users’ use of the site.79 However, as a practical matter, it is likely that many, perhaps millions, of Pinterest users either do not own or are not properly licensed to use the content they post and share via the site.

Despite legal concerns and questions from some as to whether Pinterest has a viable business model, Pinterest continues to grow at a rapid pace and now has over 20 million users. It has become the third most popular social networking site behind Facebook and Twitter.80 Many popular online retailers have embraced Pinterest by launching their own Pinterest pinboards, and some even include “Pin It” buttons on their websites—encouraging Pinterest users to share images of products they love on their personal pinboards.81 Just recently, Internet retailer Zappos.com launched a “PinPointing” service that recommends products on its site based on photographs users post on their Pinterest boards.82 And social analytics companies are actively developing tools to monitor, mine, and analyze Pinterest data to provide brands with marketing insights and data enabling them to better understand the needs and shopping habits of existing and potential customers.83

In light of the potentially huge marketing opportunities Pinterest provides from users pinning, sharing, and re-pinning content, some best practices for avoiding copyright infringement liability while using Pinterest are emerging. Certainly users can mitigate risk by posting only content they create, own, or have a license to post. Users can also restrict their postings to content for which the content owner has provided a “Pin It” button, expressly inviting users to share that content on Pinterest.

For content owned by third parties and not meeting these criteria, some commentators have suggested that users may be able to invoke the fair use doctrine.84 This doctrine permits copyrighted material to be used without permission of the copyright owner under certain limited circumstances.85 Commentary, criticism, news reporting, and scholarly research are oft-cited examples of fair use, but courts use a fact-specific balancing test to evaluate whether a particular use is fair. Section 107 of the Copyright Act provides a nonexclusive set of factors for courts to consider: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for or value of the work.86 The legal community is watching with great interest to see how these factors are weighed in cases involving Pinterest users and under various fact scenarios.

For example, Pinterest encourages users in the current Terms of Service to pin only from an original source or a permalink, to give credit to the content owner, and to include a thoughtful comment on the pin.87 These actions likely will not shield Pinterest users from copyright claims, but they potentially could help generate goodwill with content owners, and some would argue they could help support a fair use defense. For instance, including a “thoughtful comment” with each pin (rather than nothing at all or a mere description of the content) could potentially be viewed as “commentary” on the work and weigh in favor of a fair use finding. Also, some have argued that the vast majority of Pinterest users who make personal, noncommercial use of copyrighted content do not, simply by pinning and sharing the content with their friends as they might through “send to a friend” features on other sites, have any adverse impact on the potential market for or value of the work. Arguably, these users generate even more interest in the original work and drive Internet traffic back to the content owners’ sites through the leveraging of the owners’ own social networks.

As Pinterest continues to surge in popularity, and more and more content owners join the service and notice their proprietary content on the site, the buzz among commentators and users alike will continue to delight.

Conclusion

While no commentator can definitely predict how a court will respond to the new social media technologies that are being developed every day, legal scholars and practitioners can use prior court decisions—such as the recent decisions in YouTube, Wolk, and Flava Works—to peer around the corners of history to predict future developments.

Endnotes

1. DaveGorman.com, http://www.davegorman.com (last visited Feb. 24, 2013).

2. Dave Gorman, A Complete Alphabet of Eine’s Shopfront Shutter Graffiti, Flickr [hereinafter Complete Alphabet], http://www.flickr.com/photos/dgbalancesrocks/6800943616 (last visited Feb. 24, 2013).

3. Id.

4. Dave Gorman, Comment to A Complete Alphabet of Eine’s Shopfront Shutter Graffiti, Flickr (Mar. 2, 2012) [hereinafter Gorman Comment], http://www.flickr.com/photos/dgbalancesrocks/6800943616/#comment72157629132711744.

5. Complete Alphabet, supra note 2.

6. Gorman Comment, supra note 4.

7. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.).

8. 17 U.S.C. § 512(c)(1).

9. See id. § 512(i).

10. Id. § 512(c)(1)(A).

11. Id. § 512(c)(1)(B)–(C).

12. 676 F.3d 19 (2d Cir. 2012).

13. Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

14. 17 U.S.C. § 512(c).

15. YouTube, 676 F.3d at 41.

16. Id.

17. Id. at 41–42.

18. Id. at 42.

19. Id.

20. 667 F.3d 1022, 1041 (9th Cir. 2011), withdrawn and superseded on rehearing by 2013 WL 1092793 (9th Cir. Mar. 14, 2013).

21. YouTube, 676 F.3d at 36.

22. Id. at 36–38.

23. Id. at 38 (discussing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)).

24. UMG Recordings, 2013 WL 1092793, at *19.

25. Viacom Int’l Inc. v. YouTube, Inc., No. 07 Civ. 2103(LLS), 2013 WL 1689071 (S.D.N.Y. Apr. 18, 2013).

26. Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 743 (S.D.N.Y. 2012).

27. Id. at 730.

28. Id. at 743–44.

29. Id. at 744.

30. Id. at 745.

31. Id.

32. Id. at 746.

33. Id.

34. Id. at 747. The court found to hold otherwise could result in the unlawful blocking of others from uploading images to which they hold valid licenses. Id.

35. Id.

36. Id. at 747–48.

37. Id. at 748.

38. Id. at 748–49.

39. myVidster, http://www.myvidster.com (last visited Feb. 24, 2013).

40. See, e.g., Flava Works, Inc. v. Gunter, 689 F.3d 754, 756 (7th Cir. 2012).

41. Id.

42. See, e.g., id. at 756, 762. This feature was subsequently discontinued.

43. Flava Works, Inc. v. Gunter, No. 10 C 6517, 2011 WL 3205399, at *1 (N.D. Ill. July 27, 2011).

44. Id. at *2–7.

45. Id. at *6–10.

46. Flava Works, 689 F.3d at 763.

47. Id. at 755.

48. Id.

49. Id. at 757–58.

50. Id. at 757.

51. Id. at 757–58.

52. Id. at 758.

53. Id. at 760–61.

54. Id. at 762 (distinguishing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996)).

55. Id. (distinguishing In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003)).

56. Id. at 761.

57. Id. at 763.

58. See, e.g., Eric Goldman, Video Embedding Site Isn’t a Contributory Copyright Infringer, But Sideloading Could Be Direct Infringement—Flava Works v. myVidster, Tech. & Marketing L. Blog (Aug. 2, 2012), http://blog.ericgoldman.org/archives/2012/08/video_embedding_1.htm (speculating that Flava Works might be harmful to certain online business models such as Pinterest’s).

59. Copyright Notices, Twitter Transparency Rep., https://transparency.twitter.com/copyright-notices (last visited Feb. 24, 2013).

60. Cease and Desist Notices: Sent to Twitter, Chilling Effects, http://www.chillingeffects.org/twitter (last visited Feb. 24, 2013).

61. 17 U.S.C. § 512(d).

62. DMCA Complaint Letter from Gena Showalter to Twitter (Jan. 26, 2012), http://chillingeffects.org/N/210812.

63. DMCA Complaint Letter from British Broadcasting Corporation to Twitter (Jan. 30, 2012), http://chillingeffects.org/N/216410.

64. Complaint for Copyright Infringement at paras. 11–12, Boffoli v. Twitter, Inc., No. 2:12-cv-01534 (W.D. Wash. Sept. 10, 2012).

65. Id. at paras. 15–18.

66. Id. at paras. 11–12.

67. See, e.g., ItalianPoster, Twitter, https://twitter.com/ItalianPoster/status/235533186157932544/photo/1.

68. Notice of Dismissal with Prejudice Pursuant to Rule 41(a)(1)(A)(i), Boffoli v. Twitter, Inc., No. 2:12-cv-01534 (W.D. Wash. Oct. 25, 2012).

69. Copyright and DMCA Policy, Twitter Help Center, http://support.twitter.com/articles/15795-copyright-and-dmca-policy (last visited Feb. 24, 2013).

70. Id.

71. Pinterest, http://www.pinterest.com (last visited Feb. 24, 2013).

72. Pinning 101, Pinterest, http://about.pinterest.com/basics (last visited Feb. 24, 2013).

73. See Therese Poletti, Is Pinterest the Next Napster?, Wall St. J., Mar. 14, 2012, http://online.wsj.com/article/SB10001424052702304450004577279632967289676.html; Claire, Pinterest’s Copyright Crackdown, NewsCred Blog (Feb. 22, 2012), http://blog.newscred.com/article/6b0ddcc86625c685ae78821620222e55/pinterests-copyright-crackdown; Anthony Wing Kosner, Pinterest: Napster for Housewives or Wake Up Call for a Better Copyright Idea?, Forbes (Mar. 15, 2012), http://forbes.com/sites/anthonykosner/2012/03/15/pinterest-napster-for- housewives-or-wake-up-call-for-copyright; Kevin Lincoln, Pinterest Might Be Enabling Massive Copyright Theft, Bus. Insider (Feb. 17, 2012), http://articles.businessinsider.com/2012-02-17/tech/31070312_1_copyright-holder-napster-youtube.

74. Kirsten Kowalski, Why I Tearfully Deleted My Pinterest Inspiration Boards, DDK Portraits Blog (Feb. 24, 2012), http://ddkportraits.com/2012/02/why-i-tearfully-deleted-my-pinterest-inspiration-boards; Jeff John Roberts, Pinterest Locked in Stalemate with Image Owners, PaidContent (May 30, 2012), http://paidcontent.org/2012/05/30/pinterest-locked-in-stalemate-with-image-owners.

75. Terms of Service, Pinterest, http://about.pinterest.com/terms (last visited Feb. 24, 2013) (effective Apr. 6, 2012).

76. Antone Johnson, Copywrong Again: Founding the Next Pinterest or Napster?, Gust Blog (July 3, 2012), http://gust.com/angel-investing/startup-blogs/2012/07/03/copywrong-again.

77. Terms of Service, supra note 75.

78. Acceptable Use Policy, Pinterest, http://about.pinterest.com/use (last visited Feb. 24, 2013).

79. Terms of Service, supra note 75.

80. Aaron Pragnell, Why Pinterest Could Be the Next Social Media Giant, Forbes (July 2, 2012), http://www.forbes.com/sites/investor/2012/07/02/why-pinterest-could-be-the-next-social-media-giant.

81. Crate and Barrel on Pinterest, Pinterest, http://pinterest.com/crateandbarrel (last visited Feb. 24, 2013); Sean Flannagan, Just Added: Pinterest Pin It Button, Etsy (Jan. 6, 2012), http://www.etsy.com/blog/news/2012/just-added-pinterest-pin-it-button; Pottery Barn on Pinterest, Pinterest, http://pinte rest.com/potterybarn (last visited Feb. 24, 2013).

82. Sarah Mitroff, How Zappos Could Help Pinterest Pin Down a Business Model, Wired (Aug. 30, 2012), http://www.wired.com/business/2012/08/pinterest.

83. Tim Peterson, Turning Pins into Purchase on Pinterest, Adweek (Sept. 4, 2012), http://www.adweek.com/news/technology/turning-pins-purchase-pinterest-143258.

84. Kai Falkenberg, A One-Word Fix to Pinterest’s Legal Problem, Forbes (Mar. 15, 2012), http://www.forbes.com/sites/kaifalkenberg/2012/03/15/a-one-word-fix-to-pinterests-legal-problem.

85. See 17 U.S.C. § 107.

86. Id.

87. Terms of Service, supra note 75.