Instagram's Big Terms Of Service Misstep

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By Sun-Times Tech Reporter Andy Ihnatko

A calm and sober commentary on the denigrate to the Instagram terms of service -- sorry, grammar fiends, but "update" seems like too positive a word -- will follow after a bit of business:

Told you so told you so TOLLLLLD you so told you soooo...

And here I invite you to imagine me singing and doing a smug little dance in my office. It is the signature dance of someone who uses Facebook as infrequently as a person with nieces and nephews under the age of 45 can get away with. The singing is in the key of one who never used Instagram much to begin with and stopped entirely once the company had been acquired.

Yes, it's beneath me.

I apologize.

Continuing.

Once again it bears repeating that an agreement with any tech company for any service -- free or paid -- is no different from an agreement with any other kind of madman. At best, they're going to stick to the original terms. But it's likely that at any point, they're going to alter your deal...and it'll never ever be altered to tilt things in your favor.

Here's the new "Take the Princess and the Wookiee to my ship" section from Instagram's new TOS which goes into effect in January:

"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."


What does that actually mean? The real answer is on a whiteboard somewhere inside the Menlo Park headquarters of Facebook, Instagram's parent company. Everything else is open to speculation. It seems to me that this new wording translates roughly to Instagram allowing the familiar social features of other companies' services and apps to support Instagram.

Example: Your friend is using a Foursquare-style app; the app has access to all of his Instagram friends; app tells him "Oh! You know, your friend Bonfiglio Mertz was here in Deep Ellum two months ago and he posted three photos from this particular bar..." The app is probably supported by ads and that ad system might be clever enough to pull in content related to paid sponsors.

And at some point this idea goes far enough along at Instagram HQ that some lawyer decides that Instagram's current TOS is vague enough on that point that maybe they should slip in an update. And because nobody in the room at the time has ever used the Internet before, nobody wonders what will happen when someone discovers the change.

It's also a smart thing for Instagram to put into place if they intend to expand the service beyond its original "snap a photo, make it look like hell with arty filters, and then share it with friends" scope. Facebook allows you to "like" commercial products and insert them into your timeline; if Instagram wants to extend the "Corporations are people" idea to their own social network, then that's another smart reason for the company to amend their TOS. Copyright law for commercial usage of images is nonlinear, and most of the photographers I know apply a "if it's in my shot and has a Social Security number, try to get a signed waiver from it" policy.

This isn't, in fact, terribly far away from Facebook's existing content policy. Section 10 of Facebook's Statement of Rights and Responsibilities makes plain that they're going to try to make as much hay as possible from the content you choose to post. However, that same policy also says: "This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

This limits Facebook's ability to change the obvious and traditional nature of your relationship with the service; they can't sell a photo of your puppy to a pet food company as a stock image because Facebook's license to that image ends when you remove it from the service.

But as worded, yes, your Instagrammed photos can now be used in third-party ads without your consent and without compensation. Would they sell your photos? Naw. But how about an electronic billboard in Times Square advertising a dodgy life insurance plan, where the background is a slideshow of hourly Instagram photos tagged "Family"? That seems like an idea that would come up in a spitballing session. It makes sense; it might sell and there'd be nothing in Instagram's TOS to prevent Instagram from moving forward.

It's slightly baffling that Instagram allowed this mess to happen because we've seen this exact same scenario play out over and over again, since the development of the first services that allowed users to post their own content.

Initially, these services would include a functionally-harmless, yet absolutely imperative, section that granted the company a license to copy, retransmit, and repurpose your content. Why would they want that power? Well, because the service is on a huge server farm and they need the legal authority to move your photos from one spot to another. They also need the authority to allow other users to manipulate and download your images, even if you've flagged your cute ocelot photo with the necessary permissions.

So! Someone at the company cuts and pastes in some legal boilerplate, she updates the TOS, goes out for a long lunch, and returns to find that her wing of the office has been sacked and set on fire. This is why Google and other services present their TOS in its usual impenetrable legalese, but with asides of Plain English that clarify, and limit, their powers to just those things that allow them to operate the service and deliver content. Twitter's TOS is annotated, in fact, to make their intentions clear.

Instagram clearly botched this one. The new terms were due to become active in mid-January. There's little doubt in my mind that the company will backpedal and release a revision to the revision that limits Instagram's new rights to just what they actually need in order to pull off what they've got planned. God knows what that might be.

There are a bunch of important takeaways, however.

First and foremost, never forget that when you're using an Internet service you're almost always a product and not a customer. When Facebook paid a billion dollars for Instagram, it wasn't because they wanted to become benefactors...the Medicis of food photos and images of dogs wearing funny hats. It's because there was money to be made. More often than not, the "deal" struck between the user and the provider is balanced. Google Maps is an awesome app, and the more I use it, the more information Google collects about traffic and roads and the more valuable the product becomes. But that balance can change in an instant.

Secondly, the agreement you strike with a service is always transferrable. If you've granted BongoDrive.SE perpetual rights to the photos and data you upload to the service and the they go out of business, then whoever buys the company's assets will own it instead. And because the TOS is subject to amendment, they can do whatever they want with that stuff.

In Instagram's case, it was like Mother Kate's All-Natural Free-Trade Save The Trees-Brand Tooth-Cleaning Powder being bought by an immense health and beauty conglomerate. They don't care about producing a natural product with low environmental impact. They want the brand and the customers.

I was never a fan of Instagram. I liked its simplicity; I just didn't need to start feeding yet another social network, thank you very much. If you're thinking of jumping ship, I have to recommend Flickr. Yup, they were bought by Yahoo! a few years ago. But if the company damaged the service, it was only because they barely seemed to be aware that it existed. That's relatively benign, compared with Facebook seeking to recoup their billion-dollar investment and sorting Instagram's membership by weight and the likely amount of marbling in their meat.

Fortunately, the wheel's turned. They've released a terrific new Flickr mobile app that's everything it should have been in 2008. It even includes Instagram-style filters. But please, I beg of you...don't use them.

Maybe Flickr's best feature is the fact that it's been around for eight years and has firmly locked its identity as "a social service for photos." They went through their own TOS-mageddon a long time ago. Their rights to your images are clear and fair.

But remember what I said. It's still a service owned by a company, and its the nature of a company to keep rooting around sofa cushions for loose change. That circumstance is bad enough when you're the one losing his or her quarters and dimes. And it's worse when a company like Facebook keeps treating you like the sofa.

UPDATE: Instagram says "not so fast!" Co-founder Kevin Systrom blogs on TOC clarification and correction.

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This page contains a single entry by Marcus Gilmer published on December 18, 2012 1:50 PM.

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