Terms of disservice: Lessons from the Instagram debate

Instagram’s new terms don’t let it sell your pictures, but complicated agreements are bad for users
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First Published: Wed, Dec 19 2012. 12 05 PM IST
It was suggested on social networks that not only would the user cede the intellectual property rights to their pictures, but Instagram would also be able to sub-license these rights to third parties. Photo: AFP
It was suggested on social networks that not only would the user cede the intellectual property rights to their pictures, but Instagram would also be able to sub-license these rights to third parties. Photo: AFP
Updated: Wed, Dec 19 2012. 03 32 PM IST
On Tuesday, people were up in arms against Instagram, the popular photo editing service and social network, for changes in its terms of service that would allegedly lead to your private pictures turning into a series of ads to be displayed around the world.
It was suggested on social networks that not only would the user cede the intellectual property (IP) rights to their pictures, but Instagram would also be able to sub-license these rights to third parties—and the new terms also suggested that you could be shown ads in your feed without being expressly told that this was the case.
Twitter wits joked that this meant Instagram was targeting Thinkstock as a business, while various technology bloggers quickly shot out stories about how Instagram has just given itself permission to sell your photos at will.
Protests followed, and late last night (India time) Instagram co-founder Kevin Systrom posted a blog entry, titled “Thank you, and we’re listening”.
Soon after the negative reactions started, some very popular accounts, such as that of National Geographic, were suspended, with the announcement, “We are very concerned with the direction of the proposed new terms service and if they remain as presented we may close our account.”
There, he sought to clear any confusion that has arisen because of the new Privacy Policy and Terms of Service, and on the blog, he noted, “Legal documents are easy to misinterpret. Since making these changes, we’ve heard loud and clear that many users are confused and upset about what the changes mean. I’m writing this today to let you know we’re listening and to commit to you that we will be doing more to answer your questions, fix any mistakes, and eliminate the confusion.”
The entry also clarified, “Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed.”
If a user actually read the new terms of service, and the old terms of service, instead of relying only on Twitter outrage, then that’s what he/she would have realised too. One of the few measured responses came from Nilay Patel, writing at The Verge (www.theverge.com).
Patel, a lawyer who has written extensively on technology and copyright related issues, said, “First, like every other company on the web that stores user data, Instagram has always had an expansive licence to use and copy your photos. It has to—that’s how it runs its networks of servers around the world. And Instagram’s existing terms specifically give the company the right to ‘place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your content. Instagram has always had the right to use your photos in ads, almost any way it wants. We could have had the exact same freakout last week, or a year ago, or the day Instagram launched.”
If any of this is starting to sound familiar, it’s because you’re thinking of the privacy scare that occured over Facebook just last month. A hoax “anti-copyright” notice started to circulate around Facebook, and people—who hadn’t either read their terms with Facebook, or didn’t understand copyright law--quickly copy pasted it onto their walls and this spread with alarming speed. The hoax mentioned that Facebook is now an open capital entity, and mentioned “the Berne Convention” as a kind of talisman.
This was quickly debunked, and people are already starting to realise that the Instagram terms are actually more of the same, and not something new and worrying. Except that they’ve always been worrying, as are the terms for just about every single service that you use.
Whichever service you’re using has similar terms, largely because they’ve been hidden behind several dozen pages of hard-to-follow language that no one actually reads before signing up. Whether you’re talking about a social network or your operating system or even a simple video game, we as users are signing over an amazing amount of rights to these private companies without a thought. People threatening to quit a service seems to have an effect on these companies still but as they become more essential to us, will even that option remain?
Shorter, simpler terms of service would greatly help us as customers, but for now at least, we’ll have to settle for taking printouts from every site we use, and spending a weekend finding out exactly what we agreed to.
Immense, intimidating, incomprehensible
A quick look at the terms of service for a few popular technology companies
It’s not just Instagram, or Facebook, which has hard-to-follow terms and conditions. It’s endemic to the entire digital world, and there are some very good reasons for this —lots of new issues have come up with the march of technology and there aren’t enough laws to clearly cover every use. For that reason, companies need to have extensive terms of service—however, the drawback is that it’s almost impossible for the average user to understand what we’re agreeing to anymore. Here’s a sample:
Apple
There’s several dozen pages, and once you go into a specific product there’s still six or seven different policies you’re agreeing to. Each of these in turn runs into multiple pages, but at least they seem to be easy to follow.
It’s an 11-page document, and it’s only on page 7 that you realise that the software is not sold, only licensed. This particular fact gives you only limited rights as a consumer. This isn’t even unique to Microsoft—it’s a standard clause that is there in almost every software licence today. And it’s going to cause problems as we become more reliant on the Internet and digital downloads of software. If you buy a book and it is later banned—you still have the physical copy. Buy it as an Amazon eBook, and you might find it deleted from your library—completely in line with your terms of service.
There’s the line which says that Facebook reserves all rights it hasn’t expressly granted. There’s another line which says that any disputes you have against Facebook can only be settled in a state or federal court in Santa Clara County, state of California, US. There’s the fact that you don’t need to agree to the new terms of service, or even be aware of them, and as long as you keep using the social network, it constitutes your acceptance of the new terms.
There’s also the fact that if you upload something to Facebook, they can use it or transfer those rights to advertisers. You can delete the content, which will stop this, unless your content has been shared with others, and they have not deleted it.
Twitter
This is one of the few services that handles their terms well. There are 12 points, each of which is just a paragraph or two. It’s still a lot to read though, but each of the longer points has a ‘tip’ section, which is easy to spot on the page, which highlights important points in the document. But Twitter has the same rights that we’re decrying about Instagram: By submitting, posting or displaying content on or through the services, you grant it a worldwide, non-exclusive, royalty-free licence (with the right to sub-license) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods (now known or later developed). This is one of the few terms of service we spotted where users are actually told why this is done—to be able to serve your content around the world.
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First Published: Wed, Dec 19 2012. 12 05 PM IST
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