Everyone's Up In Arms Over Instagram's Terms Of Service They Didn't Read In The First Place

from the this-again? dept

Tue, Dec 18th 2012 11:48am — Mike Masnick

It never fails. No one actually reads the various terms of service for the different online services you use, but when someone finally does -- out of boredom or (more likely) because the terms are changing (yet again!) -- it's not uncommon to see sudden mass outrage. It seems to flare up every few months. Last time around it was Pinterest and this time it's Instagram, based on the claim that the company (now owned by Facebook) will have new terms that allow it to sell your photos to the highest bidder, for which you will get nothing. There is some outrage over that (selling my work!), but the thing that seems to be upsetting people the most is the fact that the company is reserving the right to have your images be used in advertisements. Here's the part in the new terms:

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.

This has created quite a bit of general outrage, though I'd argue that most (though, not all) of it is misplaced. There are some extreme arguments on both sides -- from Sam Biddle at Gizmodo telling everyone to "shut up" because they're acting like a "little whiny baby" to David Meyer at ZDNet insisting this is a move too far, and is totally unacceptable. Others are pulling out the "it's a business, what did you expect" line.

The most reasonable take I've seen so far comes from Kash Hill at Forbes, who goes through the new terms methodically, explaining what they mean. The whole "use in advertising" thing sounds basically like they're going to integrate Instagram images into Facebook's existing efforts for things like "Sponsored Stories." If that doesn't creep you out, then perhaps you shouldn't be too worried about this new thing:

If this sounds familiar, it's because it's a page from the Facebook book. It sounds like Instagram is planning something along the lines of "Sponsored Stories." So if you go into a business and gram your experience, the business can use the gram in ads, probably targeted at your friends to encourage them to do the same. The fact that Instagram grants itself the right to use metadata is significant — that means it knows the exact location where a photo was taken, making it easy for businesses to know a photo was taken inside one of their fine establishments. A big question here is whether these ad campaigns will be limited to Instagram's (and Facebook's) platforms or if they will migrate outside of the Instabook ecosystem.

Le's be honest: Many of the photos on Instagram are perfect for this. A sample gram from my weekend: "Best bloody mary in D.C. At the Pig;" that's a Pig ad waiting to happen. Actually it's a Pig ad that already happened, but no one got paid for it. Most of us are already essentially packaging and advertising our experiences to our friends (as Joe Brown at Gizmodo makes clear); Instagram is wisely trying to make money off of it.

When pitched that way, it doesn't sound nearly as bad. After all, if you were talking about how awesome the burgers at your favorite burger joint are, is it so crazy to think that the burger place might want to repeat your enthusiasm as part of their push to get more customers? Furthermore, even if the terms are worded poorly (it's mostly boilerplate, and you'll find somewhat similar terms in lots of places) if Instagram really went out and started selling your photos to appear in, say, a big magazine or TV ad, there would be significant public backlash over that, such that it's probably in their own best interest not to do that without direct permission.

That said, there are a few questionable things in the terms that may lead to legal trouble. When they say: "You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such" they're asking for a beatdown from the FTC (though, the current Facebook terms include an almost-identical item).

The thing that really surprises me in all of this is that Facebook/Instagram didn't see this coming. Perhaps it's because Facebook seems to do this kind of thing every few months -- in which they change their terms or launch a new feature that has a surprising impact on some element of privacy -- leading to mass complaints and outrage... which all gradually fade away. So maybe Facebook just figures to weather the storm -- and, chances are, for all the people complaining, very few will actually leave Instagram.

Still, earlier this year, Tumblr finally realized that it makes sense to put up plain language terms of service that isn't chock full of legalese (beyond what's necessary) and which include straightforward explanations for what the different clauses mean and how they impact you. It seems like Facebook/Instagram could have cut off a significant amount of criticism of this move if they'd simply done that: better explain in plain language what they're doing and why they're doing it. Instead, just flipping the switch on new terms is bound to set off this kind of firestorm of anger.

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Filed Under: advertising, disclosure, instagram, terms of service
Companies: facebook, instagram

53 Comments

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crade (profile), 18 Dec 2012 @ 11:57am

These things are obviously written with the intent of going unread. Rather than try futily to read all the terms of services et al. that are thrown my way and give up reading anything else ever again, I would just like the answer to a simple question. What tricks can they get away with if they hide them somewhere in their terms of service. Can I really give away commercial rights to my images without my knowledge? What are the limits? Can they take my house? How hidden can the terms be?

It doesn't matter how they claim they "will probably" use it. That would require trusting someone I don't know. What matters, is what can they get away?
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crade (profile), 18 Dec 2012 @ 12:09pm

To me, these "Agreements" boil down to:
Anything we can legally get, we claim.
Anything we can legally get out of we aren't liable for.

And whether or not I agree depends a heck of a lot more on what they can legally get and get out of.. than anything in the actual text.
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Lowestofthekeys (profile), 18 Dec 2012 @ 12:15pm

Facebook should just invest in making real-life web bots that go out and take pictures in different stores...I mean, it worked for their ad system.

/s
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Josef Anvil (profile), 18 Dec 2012 @ 12:16pm

Next gen
Generation X, Generation Y, and now....

Generation EULA
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Binko Barnes (profile), 18 Dec 2012 @ 12:19pm

I find this kind of blanket grab of rights to be very offensive. Corporations fight endlessly to preserve their own IP. Yet they are willing to seize the IP rights of their customers whenever it suits them.

Essentially this says that you are granting them the copyright on all the pictures that you post. They can do whatever they want with them and you have no recourse and receive no compensation. This is pretty extreme.

Pictures of you could show up in support of things you don't support. Multi-million dollar ad campaigns could use your pictures without compensating you. Pictures of your kids, your dog, your house, your friends and your family could show up in an endless number of places that you find offensive or embarrassing. It's hard for me to believe that some commentators are saying that this is no big deal.
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Mike C. (profile), 18 Dec 2012 @ 12:26pm

Publicity rights...
This will certainly be fun when someone's random celebrity shot from the streets of LA gets used as an ad and a publicity rights lawsuit filed. That's sort of the point raised by non-user Wil Wheaton in his blog. He doesn't use the service, but does he now have to worry about how people around him use it? Of course, he also admits he's not likely "big" enough for it to be a concern for him, but that he knows people for whom it will be.

Should be fun to watch corporate IP grab run headlong into entertainment IP grab... lol
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Anonymous Coward, 18 Dec 2012 @ 12:28pm

DMCA
How long before someones photo is taken down with a DMCA request because it was used in an advert?
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Anonymous Coward, 18 Dec 2012 @ 12:30pm

Re:
Are you high bro?

Of course things could show up where you don't want them this is the internet, if you put it online it will spread, if you scream in public for everyone to hear you people will spread that word and others will make use of it, even if you don't like it that much.

Now why would you put your stuff in a public space?

Is hard to understand why you think is a big deal.

If you entrust others with your stuff they will use it, is not that difficult to understand, if you make it public somebody somewhere will find a use for it, if you don't want "your stuff" to be used just don't post it online or in public.
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Anonymous Coward, 18 Dec 2012 @ 12:36pm

Re:
Youtube: Facebook Parenting

See there?
That angry father punished his daughter in public for everyone to see, third five million people saw that and there is nothing he can do to change anything, Youtube automagically apparently posted that as a trending video and the spoofs multiplied.

You think that guy is getting money from everybody who is using his video?
Did Dr. Phil paid the father for using it on his show on CBS?

People should be more responsible, if you put stuff in public don't complain that others are using it someway you didn't like it, after it is in public it is not up to you what it should be used for save for very, very rare circumstances where physical harm may be involved other than that people should just learn to get over themselves and move on.
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Anonymous Coward, 18 Dec 2012 @ 12:36pm

if the situation were reversed and everyone wanted to use things from Instagram, Facebook, Flickr etc and profit from the use, there would be a serious amount of shit hitting fan, all thrown by those companies. why should they be allowed to not only use others photos but profit from them as well? if that isn't taking the piss, i dont know what is!
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jameshogg (profile), 18 Dec 2012 @ 12:37pm

When are people going to realise that copyright is the enemy?
What we have here is a large number of people who have just realised they were unaware that they surrendered their buck of power to a higher authority without even knowing it. And if you follow the money over the long term, it becomes almost predictable that companies like Facebook will sell out as best as they can... and what better way than to exploit the evils of copyright? Claiming all rights of creativity that they had no part in! By exploiting the ignorance of people on the thousands of self-contradictory pages on copyright law!

Indeed, when bands need a label, they need to do the same. So do authors, game developers, movie makers, etc. And of course the only way to resist this since all publishers do it whenever they can is to self publish... meaning blatantly unfair circumstances. Now we ALL know how it feels.

Get rid of copyright. The issues of plagiarism, defamation and branding can go on without it. Official branding/tagging solves it all, and allows for derivative markets to flourish. Indeed, an automatic "brand" in the form of a person's name for all works made by that person would be much harder for companies to take away from you... if not impossible.

I know for a fact that I will never give away my copyrights on any creative work that I do to anyone... not because I want to have the deadly weapon for myself, but to prevent some bastard using that deadly weapon against others. Indeed, this is also because I cannot guarantee that by releasing it into the public domain it will stay there... who knows what company will laugh at the idea of public domain and push in courts to buy it up? Also, I have no libel or plagiarism protection for creative works outside of copyright law, either. Maybe a Creative Commons License is in order.

Fuck copyright.
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crade (profile), 18 Dec 2012 @ 12:42pm

Re: Re:
Not that I dissagree, but your argument applies equally to all email.
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Anonymous Coward, 18 Dec 2012 @ 12:47pm

Re:
I really don't know who is taking the piss, the company trying to grab all the rights it can't get while trying to curb those same rights to others or the public that already know that they are using a public forum that is owned by for profit company and start acting like they too should grab all the rights they could get away with it.

I am fan of the KISS thing.

If you put it in public you have no rights and should have no recourse, what others do or don't do shouldn't give anybody(company or individual) any special rights since you publicly and willingly published those things without being coerced to do so.
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crade (profile), 18 Dec 2012 @ 12:48pm

Re: Re:
The whole idea of facebook and instawhatever is so that you can share things with specific people (your friends and family, or whoever you choose to share things with) and such without having to make it public.
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crade (profile), 18 Dec 2012 @ 12:49pm

Re: Re:
The whole idea of facebook and instawhatever is so that you can share things with specific people (your friends and family, or whoever you choose to share things with) and such without having to make it public.
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crade (profile), 18 Dec 2012 @ 12:51pm

Re: Re:
The whole idea of facebook and instawhatever is so that you can share things with specific people (your friends and family, or whoever you choose to share things with) and such without having to make it public.

If you choose to make it public rather than private, that is a whole different story.
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crade (profile), 18 Dec 2012 @ 12:51pm

Re: Re: Re:
erm.. Sorry it kinda glitched out on me.
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Zakida Paul (profile), 18 Dec 2012 @ 12:52pm

Perhaps if the damn things were not so bloody complicated, people would read them. The reason they are so complicated is that the companies do not want you to read them
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Anonymous Coward, 18 Dec 2012 @ 12:54pm

Re: Re: Re:
That is why I trust the email service to deliver it, but I do not trust it enough to send it in an open format, would you send a letter without a seal?

I don't send emails without encryption, my encryption tools, my keys, my envelop.

In God I trust for everybody else I encrypt.
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Anonymous Coward, 18 Dec 2012 @ 12:58pm

My thoughts
"if Instagram really went out and started selling your photos to appear in, say, a big magazine or TV ad, there would be significant public backlash over that, such that it's probably in their own best interest not to do that without direct permission."

Yes, because we all know corporations never do stupid things that create backlash.

How about we have the backlash NOW, when they create these terms, rather than later when they use them in a stupid way? And also, NOW, before this becomes standard for every website?

"...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. "

Excuse me, but that pretty much sounds like a blanket giveaway of publicity rights. And the plain wording seems rather insidious. It says "photos", not "photos you upload to our site". It says "actions you take", not "actions you take on our site". So what stops them from taking pictures of you on the street and using them in a nationwide ad campaign?

Unlikely? For most of us, yes, but why demand such unlimited rights? And what about famous people who actually do paid endorsements? If Tiger Woods creates an account, then what stops them from selling his likeness to everyone who wants it?
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Anonymous Coward, 18 Dec 2012 @ 1:02pm

Re: Re: Re:
No, that is your vision of it, not what Facebook or Instangram have in mind.

If you want more control over those things you should use Diaspora or something like that, not a for profit company that is well known to grab all your data and make commercial use of it.
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crade (profile), 18 Dec 2012 @ 1:09pm

Re: Re: Re: Re:
What do you mean? Thats exactly how these services are advertised and set up..
With privacy settings and friend lists.
It's not my vision.. My vision of facebook is just a newspaper for stupid things my friends have said or done recently and I don't use instagram at all.
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Alex Hagen, 18 Dec 2012 @ 1:09pm

Underestimate the anger
"maybe Facebook just figures to weather the storm -- and, chances are, for all the people complaining, very few will actually leave Instagram. "

I think you underestimate the anger on this one. I have never used it personally, but there are a lot of people on my feed who have already deleted their accounts.
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Anonymous Coward, 18 Dec 2012 @ 1:15pm

How the f$^# does Google screw up once with Buzz, and then they have to monitor them for 20 years on privacy issues, and Facebook gets to do this and outrage people twice a year, and nobody even questions them?
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New Mexico Mark, 18 Dec 2012 @ 1:20pm

Simplified EULA distills centuries of contractual legalese
"Here's to you, here's to me -- may we never disagree. But if we do, to hell with you -- here's to me."

Unfortunately, few would click "OK" to agree to the simplified version. Hence the legalese to say the same thing without the other party realizing it.
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Jim, 18 Dec 2012 @ 1:24pm

How does this work from a copyright standpoint?
They have the right to sell your work... so is it basically that you are agreeing to give them a license to sell, yet you still retain the copyright on the images?

Copyright voodoo is so confusing!
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Lord Binky, 18 Dec 2012 @ 1:34pm

I wonder what happened to the outrage from TOS such as the one for microsofts messenger, where it claimed rights to all communications made on their system. So if you happened to tell your friend the method to cure cancer on the messenger, guess what, microsoft would own it then...It's been like this awhile, I guess that people see that it's pictures, it's their 'art' or 'work' or whatever that they want lottery chances such that if they're picture gets picked for something, they make money. yay for money with no effort!
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Anonymous Coward, 18 Dec 2012 @ 1:39pm

Re: Re: Re:
https://www.pcworld.com/article/254338/how_to_encrypt_your_email.html

The privacy is yours, the life is yours and the interest in it is yours.

So should the tools and means to create your own privacy.

If you delegate that job to others, you are agreeing to their vision of it, not yours.
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Anonymous Coward, 18 Dec 2012 @ 1:42pm

Man, I'm so glad I've stayed the heck away from social networking.
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Anonymous Coward, 18 Dec 2012 @ 2:05pm

Re: Re: Re: Re: Re:
The default private setting in both services are?
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crade (profile), 18 Dec 2012 @ 2:09pm

Re: Re: Re: Re:
I don't know where you guys got the impression that I am paranoid about my emails being leaked (I'm not) or that I don't know about PGP, but it's not very useful in a general business environment, it's more for setting up links to specific individuals who are paranoid about their emails being leaked..
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Richard, 18 Dec 2012 @ 2:23pm

Nope.
Plain language terms of service are dangerous because they could be used by scummy lawyers to get massive awards for corrupt people who sue companies for dumb things like being splashed with luke warm coffee. This country desperately needs tort reform to protect corporations from lawsuits launched by gold diggers.
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Anonymous Coward, 18 Dec 2012 @ 3:19pm

Ugh. So tired of talking about this stuff....
So last week I was on Amazon looking at cowboy boots a coworker of mine was showing me that he was going to buy his wife.

Please tell me why now, how a week later, those stupid boots showed up in an advertisement on FoxNews article I visited as a sponsored link that didn't even go to Amazon.com?

If you go online, you risk your identity, and you risk being tracked, and you risk someone trying to get into your head to put up advertising to get you to buy shit.

That's just the reality of being online.

I didn't say I was happy about it. Damn straight I was like "WTF". What's my alternative?
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John Fenderson (profile), 18 Dec 2012 @ 3:36pm

Re: Nope.
However, the legal language TOS are dangerous because they are incomprehensible and can be used by scummy lawyers to get people to agree to stuff that they would never agree to if they really understood them.

So, damned if you do and damned if you don't.

sue companies for dumb things like being splashed with luke warm coffee

There are some good examples of ridiculous lawsuits, but that is not one of them, btw.

Corporations hardly need more protection from regular people. They have plenty enough as it is and can defend themselves quite well. What we need is more protection against corporate misbehavior.
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John Fenderson (profile), 18 Dec 2012 @ 3:37pm

Re: Ugh. So tired of talking about this stuff....
It is possible to avoid the vast majority of tracking. The problem is that it takes awareness and effort.
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crade (profile), 18 Dec 2012 @ 3:39pm

Re: Ugh. So tired of talking about this stuff....
Sure, and if you go outside, you risk being attacked, hit by a car, mugged, or whatever.. so what?
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crade (profile), 18 Dec 2012 @ 3:42pm

Re: Re: Nope.
Sorry, but spilling coffee on yourself and suing because it's hot is a ridiculous lawsuit.

Corporations do need better protection against that crap. They shouldn't have to be babysitters.

I can't get hot coffee anymore because of that crap.
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Anonymous Coward, 18 Dec 2012 @ 3:58pm

Re:
In most cases, they can do ("get away with") what the terms of service say they can.

User beware. Read the terms.
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Anonymous Coward, 18 Dec 2012 @ 4:00pm

Re:
This isn't a "blanket grab of rights." Even the terms people are complaining about (which Instagram has now said they intend to revise) don't, for example, require an assignment of copyright.

Even if you don't read and understand the terms, the least you could do is refrain from spreading misinformation.
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Anonymous Coward, 18 Dec 2012 @ 4:02pm

Re:
"why should they be allowed to not only use others photos but profit from them as well? "

Because that's the condition on which those others are allowed to use the service provided. If they decline, so be it.
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Anonymous Coward, 18 Dec 2012 @ 4:04pm

Re:
"Perhaps if the damn things were not so bloody complicated, people would read them."

True

"The reason they are so complicated is that the companies do not want you to read them"

Not true (in most cases). I know people like to ascribe negative motives to anything they don't like, but it's usually a benign motive behind such things. They read the way they do because they are drafted by lawyers, and lawyers tend to draft things in a manner that is clear to other lawyers. Also, lawyers are hesitant to go out on a limb and use plain language that may be easier for a layperson to read, but have less history of interpretation by courts.
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Anonymous Coward, 18 Dec 2012 @ 4:06pm

Re: How does this work from a copyright standpoint?
"so is it basically that you are agreeing to give them a license to sell, yet you still retain the copyright on the images?"

Pretty much, yes. Althought they've not stated that was not their intent, and they are looking to revise these new terms.
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Anonymous Coward, 18 Dec 2012 @ 4:07pm

Re: Re: Re: Nope.
"Sorry, but spilling coffee on yourself and suing because it's hot is a ridiculous lawsuit."

How familiar are you with the facts of that suit?
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Wayne Richardson, 18 Dec 2012 @ 4:25pm

Love all the statists defending the ridiculus "hot" coffee lawsuit. A fool is born every minute and a statist is right there to get the lawyers and government involved, to steal the wealth of the competent to give it to the incompetent.
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Anonymous Coward, 18 Dec 2012 @ 5:30pm

Whoever looks to Gizmodo for help forming their opinion is as pathetic as Gizmodo's constant flood of Apple posts.
(not a user of Instragram, Facebook, etc, just a comment on one of the sources)
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Anonymous Coward, 18 Dec 2012 @ 5:55pm

Some day, EULAs, particularly ones that are binding without consent or knowledge of the end user at or during transaction (think video games) are going to be struck down. And venues such as these will have only themselves to blame.
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Anonymous Coward, 18 Dec 2012 @ 6:31pm

Re: Re: Re: Re: Re:
If you are not you should.

Encryption is the only thing that will keep your privacy private on the internet.
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crade (profile), 18 Dec 2012 @ 7:23pm

Re: Re:
What for? I already know the content.. Everything they can get away with without needing a real agreement.
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crade (profile), 18 Dec 2012 @ 7:27pm

Re: Re: Re: Re: Nope.
I know the lady spilled it on herself, it wasn't done by the company and I know the coffee was hot (oh wayyy hotter than it should be or whatever), and I know you can't get hot coffee at fast food joints anymore.
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crade (profile), 18 Dec 2012 @ 7:30pm

Re: Re: Re: Re: Re: Nope.
"should be", and even here in Canada we can't have hot coffee anymore cuz of that.
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crade (profile), 18 Dec 2012 @ 7:46pm

Re: Re: Re: Re: Nope.
Now I know a bit more.. I know coffee burns you if you spill it on yourself.. and tea probably even more so.. And we got bigger "coffee is hot, dumbass" labels now.

Here is some info and references on wiki if your really interested.
http://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants
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Gerhard, 21 Feb 2014 @ 5:18am

Re: Nope.
Corporations do need better protection against that crap. They shouldn't have to be babysitters.

continua
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