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Users snap over Instagram, but should have seen it coming

The online world was abuzz with Instagram’s hardline terms of use changes. But users should know what they’re getting themselves in for when using social media platforms.

A frantic fart of fear frothed forth over changes to fun photo fiddling service Instagram’s terms of use. It shows how little people understand what they’re getting into when they post their photos online. Will it be a wake-up call?

Instagram implemented a simple concept — posting smartphone happy snaps made lass crap with preset effects — and was a runaway success. Facebook bought the company for a billion dollars in April this year, despite it having virtually no revenue.

But Instagram had lots of users. Some 100 million in September. And they’re uploading photos that are timestamped and linked to their movements, and released for Instagram to use for all manner of commercial purposes without payment.

That last part is the cause of all the fuss. Yesterday Instagram posted new terms of use that will come into effect on 16 January 2013. Paragraph 2 of “Rights” scared the bejesus out of people:

2. Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata) on your behalf.”

Facebook and LinkedIn already do something similar. Press the “Like” button or otherwise endorse a commercial thing, and your name and photo may be used in an promotion shown to your friends.

Somehow all this started being reported as “Instagram can now sell your photos”. People panicked, and have been downloading their photos to take elsewhere, using tools like instaport.me, even though the immediately preceding paragraph makes it quite clear:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy.”

Even supposedly reputable mastheads got it wrong. “Insta-rage as Instagram claims right to sell your photos”, Fairfax wrote. Which is odd, because the difference between selling and licensing a photo is the same as the difference between selling and renting a house, and they manage to get that right in the real estate pages every week.

Professional photographers know this stuff backwards, of course. It’s their business. But Instagram isn’t about professional photography.

For a while at least, Wikipedia’s page on Instagram echoed the fears: “There is no option to opt out of the changed terms of use. The only way for an Instagram user to avoid the change is to delete their account.”

Yes, that’s the definition of terms of use. Don’t like the rules? You don’t get to play.

American intellectual property lawyer Daniel Schaeffer raised an interesting point, reported at CNet:

People in my photos, whether or not they are Facebook users, have rights. They certainly haven’t given consent to having their images appear in ads, even if I have allowed Facebook to use my photos. For instance, if I take a photo of my friend in front of a business, and the business then purchases the right to use that photo in an ad campaign, then my friend’s likeness is being used without her consent. Consents and releases are a major aspect of any advertiser’s use of photographs and video — I find it hard to imagine the drafters of the new policy took that into consideration.”

But Instagram’s terms of use make it clear that users should have sorted all this stuff before uploading:

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights …”

Instagram’s new terms of use aren’t really that different from the current rules, although the language is clearer. They’re consistent with Facebook’s. Other social networks have similar rules. In August 2011, LinkedIn even snuck in the right to use your photo in adverts and, when they copped a backlash, didn’t apologise.

Instagram has already responded. Not an apology, but certainly a clear backdown:

Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.”

Instagram also made it clear that they have no plans to use people’s photos in advertising.

The core lesson here is that services like Instagram aren’t free. You pay for them by licensing the operator to use your content and other data in various ways. If you don’t like that, well, pay for your goddam internet hosting yourself.

12
  • 1
    Adrian
    Posted Wednesday, 19 December 2012 at 11:34 am | Permalink

    ” If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata) on your behalf.”

    So, basically, “If you’re too young to enter this agreement, you agree to the term of this agreement that says that someone else who can enter an agreement agrees that you can enter this agreement”.

    Am I right?

  • 2
    tinman_au
    Posted Wednesday, 19 December 2012 at 12:34 pm | Permalink

    I think any automated system where they inject ads into photos will lead to some highly amusing outcomes!

    And, when those photos involve children, perhaps some tragic ones :(

  • 3
    zut alors
    Posted Wednesday, 19 December 2012 at 2:09 pm | Permalink

    Yet another example of 21st century Instacrap society. Progress?

  • 4
    Stevo the Working Twistie
    Posted Wednesday, 19 December 2012 at 2:33 pm | Permalink

    You had me, right up to “Instagram also made it clear that they have no plans to use people’s photos in advertising.” That’s all right then, I’ll provide them that right because they assure me they don’t intend to exercise it. BTW, I’m not an Instagram user, and only share the bare minimum via other social media sites. And this is why.

  • 5
    Kristian
    Posted Wednesday, 19 December 2012 at 4:25 pm | Permalink

    The core lesson here is that services like Instagram aren’t free. You pay for them by licensing the operator to use your content and other data in various ways. If you don’t like that, well, pay for your goddam internet hosting yourself

    Geez! Sprinkle a little extra smug on your cornflakes this morning?

  • 6
    dale ross
    Posted Wednesday, 19 December 2012 at 9:08 pm | Permalink

    facebook, instagram, twitter-the US should break up these ghastly entities via anti-trust laws. We taxpayers subsidise these bludgers.

  • 7
    Steve777
    Posted Thursday, 20 December 2012 at 6:14 am | Permalink

    Any product offered for free should be approached with caution. If you’re not paying for a product, that normally means that YOU are the product. Applies to ‘free to air’ TV and to social network sites.

  • 8
    Ronson Dalby
    Posted Thursday, 20 December 2012 at 9:32 am | Permalink

    Got to agree, Kristian. That last sentence ruined the whole article.

  • 9
    TheFamousEccles
    Posted Thursday, 20 December 2012 at 10:05 am | Permalink

    Two things - Firstly, the article was informative (I am not an Instagram user but I follow internet privacy issues), and in some aspects cleared away a few questions I had over this impasse.

    The second is that the author comes over as an utter tool, and in my experience of the “it” crowd (and I have plenty of experience managing IT types, similar to herding kittens but not as enjoyable) he is not unique.

    Sorry mate, but I wont waste my time on your condescension again.

  • 10
    Kaye Uiterwyk
    Posted Thursday, 20 December 2012 at 10:19 am | Permalink

    I think more and more people are discovering that a “free” internet is not necessarily “free”. It’s unfortunate that we use the same word to mean something for nothing, and freedom of expression. People often shift from one meaning to the other… freely. Now, I’ve been hanging around the internet in various forms since about 1990. The dream of a “free” internet was a liberal-minded, vaguely leftish, communal geeky dream. Now the riff-raff is here, the dream is fading fast. ;o) If you pay the bills with money from advertising, things can quickly deteriorate to the point where the advertisers are the customers and your job is to keep them happy. The buzz word in tech is “monetization”. We have all these eyeballs, now how to we cash in. Entities like Google start to look like monopolistic monsters. An internet paid for by advertising starts to resemble the wasteland that is commercial telly in this country. The effects are insidious. If we want an independent and free internet, we might have to start paying.

  • 11
    Kristian
    Posted Thursday, 20 December 2012 at 10:51 am | Permalink

    @TheFamousEccles
    Until now, Stilgherrian has avoided the trap of writing like the stereotypical, sanctimonious IT nerd that most of us know from the office. Shame it slipped through here.

  • 12
    Posted Thursday, 20 December 2012 at 4:54 pm | Permalink

    Copyright lawyers will know alot more about this than me, but here are my musings:

    In Australia at least (maybe not in France or the USA?) as I understand there is no legal right of a person to their own physical image if taken in public, nor does it require consent. It may be polite and moral but I don’t think there is a law about it. For instance news organisations use people’s images without their consent all the time.

    So consent to use a phyiscal image of a person (which is not required here in Oz) is different to the issue of ownership of copyright in a photo (whether of a landscape or of people as the subject).

    I notice this summary online which is a bit dated but seems right http://www.kangraphotos.com/reference/p_and_c/nsw_photo_rights.pdf

    As to retrospectively asserting the right to use copyright in photographs belong to users whether of landscapes or other people, by a mere change of use terms, wouldn’t that require a real and informed consent by the user? For instance, the law usually takes a dim view of fine print, and ambushes in matters of property. Is an email amongst hundreds or thousands of emails really notice? It could be misleading and deceptive conduct in business. Wouldn’t they need a positive opt in consent, rather than an opt out? Otherwise the conduct of apparent acquiesence, or more likely silence, after the terms of use change, might be equivocal and not amount to a genuine retrospective consent at all?

    I really doubt silence amounts to consent.

    Unlike the position suggested in the story, what the users/audience may well be giving Instagram is the right to bombard them with advertiser content, that is, to sell them as an audience to advertisers. Just as a free newspaper sells advertising to business to communicate to a definable audience. This is much less than consent to transfer copyright property of the audience to advertisers.

    On the other hand if users are in fact well informed of the change of terms, and go along with it by using it, grumpily or grudgingly or otherwise, then their conduct might be evidence of consent. Again if a user writes to instigram and says I do not consent to selling/licensing (ie a partial transfer of the copyright property) of my content to others, Instigram may have to actively address that - cancel the account, or negotiate a deal. If I were instigram I would be concerned about exposure to a suit for breach of copyright for lack of positive consent to their unilateral change of terms.

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