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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.

Here are some of the stories that caught our attention during the work day for November 19, 2012.

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Cargill Floor Supervisor Lucas Harrington, left, and Cargill Food Mill Supervisor Craig Miller "guard" the two turkeys at West Rockingham Ruritan Park, that are bound for the White House Monday afternoon, Nov. 19, 2012, in Rockingham County, Va. The turkeys, which were grown by Rockingham County poultry farmer Craig Miller, are expected to be pardoned by President Barack Obama Wednesday, and live out their days on George Washington's Mount Vernon Estate. (AP Photo/The Daily News-Record, Nikki Fox)


• Mayor Emanuel swears there's nothing wrong and that the Gold Coast is perfectly safe after a pair of incidents - a stabbing and an accused robber allegedly trying to run over a cop - in the area this weekend. It's true that in a big city, occasionally crime will happen even in nicer parts. Still, there are a million reasons I'd never step foot in the area and it has nothing to do with crime. [Sun-Times]

• Meanwhile, the Mayor is also saying that the pension crisis could throw a big wrench into the city budget. [WBEZ]

• Ex-county commissioner Joseph Moreno is in talks for a plea deal over accepting bribes. A Chicago politician taking a bribe? No, this just can't be true. [Sun-Times]

• So Hostess may not be closing after all as a judge told both sides involved to sit down and work out over a couple of Ho-Hos. So don't go paying $5,000 for Twinkies on eBay just yet because while that's a perfectly sane thing to do anyway, it may not be necessary. [Sun-Times]

• The family of a Maine West High School student have filed a lawsuit claiming the student was sexually assaulted during a hazing incident related to making the school's soccer team. [CBS 2]

• Just a day after opening, an Evergreen Park BBQ restaurant had a car drive through its front. Now that it has that out of the way, it can move on with its grand opening when it reopens tomorrow. [NBC 5]

• Jason Campbell! Colin Kaepernick! It's Monday Night Football on ESPN! [NFL.com]

• The United Center is hoping to entice the DePaul Blue Demons with a deal that includes free rent. Other parts of the deal include free skeeball but a promise to end all parties by 2 a.m. and to take out the trash when they're done. [Crain's]

• Maryland and Rutgers are joining the Big Ten as the conference shuffling continues. Now word if the Big Ten will rebrand itself or add another division alongside Legends and Leaders called "Mediocre Pretenders." [ESPN]

• BRIGHT ONE: Neil Steinberg breaks down Garry Willis' analysis of Mitt Romney's campaign. [Sun-Times]

• FINALLY: Forget any kind of financial woes, don't mess with a city's Christmas tress. At least, that's what the city of Birmingham, Michigan found out given the outcry following the revelation the city has optioned for a cheaper, reusable 35-foot tall artificial tree. On the bright side, no sap hands! [Detroit Free Press]

Here are some of the stories that caught our attention during the work day for November 15, 2012.

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Al Podgorski/Chicago Sun-Times

• Proving it doesn't matter who's in the mayor's chair and they'll cave anyway, the Chicago City Council voted 46-3 to pass Mayor Rahm Emanuel's proposed 2013 budget. Aldermen Robert Fioretti (2nd), Scott Waguespack (32nd) and John Arena (45th) were the only ones who didn't give their rubber stamp to the mayor. Meanwhile, the lone "not present" vote belonged to Ald. Sandi Jackson (7th) making the whole "shirking legislative duties" thing an all-in-the-family affair. [Sun-Times]

• Attorneys for victims of torture in the Jon Burge case claim Cook County State's Attorney Anita Alvarez shouldn't be involved in reviewing these cases since she was at the office when the original cover-ups were occurring. It's shocking a Cook County political figure or official would be accused of having a conflict of interest. [WBEZ]

• Twinkies may not be around for us all to eat in the post-apocalypse after all. [ChuffPo]

• Prentice Hospital got a reprieve from the wrecking ball thanks to an order from a Cook County judge granting the building temporary landmark status. Chicago residents should expect to wake up one morning sometime in mid-January and find two giant bulldozed X's where the hospital stood just the night before. [Sun-Times]

• Mitt Romney is not bitter at all about losing the election. Nope, not all. Nuh-uh. Not one bit. [Gothamist]

• The CTA, though, backed off on presenting its budget today as a result to ongoing union negotiations. If those negotiations turn sour for CTA head Forrest Claypool, more service cuts and fare hikes could be coming because the agency hasn't otherwise found a way for riders to make their commutes even more miserable than they already are. [Sun-Times]

• First Threadless, then Obama's re-election, so what's next for one of Chicago's brightest tech minds? My money is on "weather machine." [Crain's]

• Brian Urlacher criticized the NFL for shoddy equipment but he also reiterated he'd lie to team personnel about having a concussion creating a Möbius strip of inexplicable logic. [Tribune]

• Nate SIlver says Chicago is better than New York. His wizardry will brook no argument from me. [Chicagoist]

• A retired chaplain in Glen Ellyn discovered he's now $1 million richer thanks to a two-month old lottery ticket he found cleaning his desk. I cleaned my desk today and found only a banana peel. [Daily Herald]

• FINALLY: Star Wars action figures and dominoes were inducted into the National Toy Hall of Fame. In other news, there is a National Toy Hall of Fame. [MSN]

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