Update: Josh Davis has a great take on this issue that only came to my attention after I wrote this.

Image sharing site Pinterest, with its kind-of-crazy, wild west copyright policy, is a great example of how, for some startups, it's best to shoot first and ask questions later. Under the "safe harbor" provision of the Digital Millenium Copyright Act, Pinterest isn't really responsible for all the copyright-violating content that users post to Pinterest. The site has a system for flagging content that does, which puts Pinterest in compliance with the law and, at least in theory, on the side of rights holders.

But why, for example, has Pinterest failed to implement a straightforward system for recording the rights status of images its users post, as Flickr has? The answer is simple: By resolving the rights on an image after the fact, Pinterest creates a frictionless mechanism for sharing. Which is precisely why the site has taken off. 

Spend a few minutes using Pinterest, and in particular its bookmarklet, and you'll recognize the work of some seriously talented UX designers. The sort who understand that what you leave out is just as important as what you put in. Funny thing is, Pinterest's dodge on copyright is a part of that excellent UX.

A lot of what goes on Pinterest that's a violation of copyright is probably OK in the eyes of many whose images are being appropriated. After all, because Pinterest includes a link back to the source of a piece of content, it's already fifth in driving referral traffic to websites, and it's even better at driving traffic to retailers. That traffic is a sort of in-kind payment to most sites for the use of their images, and it's inarguable that Pinterest is a new use of that content that publishers probably couldn't capture on their own. Whereas assigning rights to images wouldn't just impede sharing on Pinterest -- it might cause it to implode. The Internet masses aren't suddenly going to become experts on fair use.

So while Pinterest is admitting on its own blog that it has a problem with copyright, the most likely outcome of this saga is not a Grooveshark-like end to Pinterest, but an admission by many publishers that they simply don't care what anyone does with their images, as long as it helps drive users back to their sites.

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Much to the displeasure of the wider EU, the Dutch want to liberalize their copyright laws to explicitly allow remixes and mashups. The irony is that their inspiration is not political movements like Sweden's Pirate Party, but America's laws about fair use.

In the U.S., fair use protects the use of copyrighted material for commentary, criticism and the like. But automated tools for detecting copyrighted material (on e.g. YouTube) and the overly-broad Digital Millennium Copyright Act, which allows anyone to request that an infringing work be taken down, put the burden of proving that a work constitutes fair use on the content creator. This has a chilling effect on the kind of work everyday people release on the web.

The proposed Dutch laws, in contrast, would explicitly protect fair use of copyrighted material. Here's Marietje Schaake, of the European Parliament, quoted by Radio Netherlands:

"We must ensure that there is competition and a free market but we have to protect creativity as well. Right now the entertainment industry, for one, benefits from these outdated laws. These big parties will do all they can to prevent reform or redesign at all." 

Remember when tape decks and VCRs represented mortal threats to copyright holders? The result was the Audio Home Recording Act, for which the RIAA lobbied. That law set the precedent for taxing media (in this case, tapes) to pay for perceived losses to content creators, and it paved the way for subsequent Digital Rights Management technologies.

We're in a similar situation today, in which rights holders would rather cripple the unique abilities of a new technology than be forced to innovate new ways to profit from it. If the Dutch actually pass the proposed law, it will be over the protests of the EU, which would like to harmonize copyright standards across all member countries. That harmonization wouldn't just be a tragedy for Europe, which has no fair use provisions in its copyright law. It would also represent a missed opportunity for the Netherlands to show the rest of the world that copyright can be guided by the principles under which it was first established, when the goal was an enlightened balance between the needs of citizens and corporations.

Las Vegas-based lawfirm Righthaven has been suing everyone from bloggers to commenters -- anyone who has posted even a portion of the text or images to which it owns the rights. Righthaven doesn't actually make anything, they just buy the rights to stories and images that have gone viral on the web.

Now, according to the Las Vegas Sun, Righthaven has scored what Ars Technica aptly describes as an "own goal": Not only did a Federal judge reject Righthaven's case against the non-profit Center for Intercultural Organizing, the judge also declared that non-profits may re-print entire articles from news outlets under certain circumstances.

The decision hinges on the portion of Fair Use law that declares that it's all right to re-distribute a piece of content as long as it doesn't hurt the market for the original content. In this case, there was virtually no possible overlap between the readership of the original piece (a Las Vegas Review-Journal newspaper article) and the readers who would see the piece on the non-profit's website.

In seeking to reap maximum damages from as many defendants as possible Righthaven appears to have opened the floodgates to a kind of soft-infringement. For example, the argument could be made (but was not, apparently, in this case) that if any non-profit could reprint an entire article, rather than excerpting the article and linking to the original, this could actually constitute damage to the "market" for that article, in as much as it would reduce the number of pageviews that the original article received.

Clearly this was not the intention of Righthaven, but it raises the question: in its over-reaching, has the law firm set a precedent that could damage the ability of content creators and news gatherers to control how their works are used, and to achieve fair compensation for their distribution?

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