I don't think Instagram/Systrom had any intention to sell user photos or do anything as drastic as the blogosphere made its TOS changes sound.
It did the right thing responding so quickly to user feedback. Hopefully it'll result in a TOS that lets Instagram monetize without infringing on the privacy of its users.
> Hopefully it'll result in a TOS that lets Instagram monetize without infringing on the privacy of its users.
And maybe just maybe they will review further TOS changes before unleashing them. If these terms were really against Instagram's plans, it's almost even more pathetic.
I agree. There is a lot of attention paid to TOS changes lately. How could they not see that this would come with heavy backlash? I know he keeps saying "not our intention" in that post, but intentions don't amount to anything if the TOS clearly gives them carte blanche with your photos. Just some really bad public relations going on there.
After reading some of the TOS changes and this blog post it really seems like a case of overzealous lawyering - trying to cover Instagram for all possible uses of the photos.
I'd like to see a site/service along the lines of http://www.tldrlegal.com/ but which crowdfunded some decent lawyers to review the ToS, privacy policy, etc of popular sites (determined by user votes) and provided a list of potentially objectionable statements.
Not as Proper Noun Legal Advice, but more as a set of things which might be a concern, and you should have your own qualified legal counsel examine in detail if desired)
I can think of all sorts of problems though; malpractice, negligence, copyright infringement of ToS, libel for misinterpretations, and many more besides. Maybe that's why it doesn't (can't?) exist.
The legal text, i.e., the announced new ToS, remain relevant, in particular since the ToS rule out suing Instagram (you have to revert to arbitration). I therefore see today's announcement as an important first step but an amendment to the announced new ToS has to follow suit if Instagram really takes this matter serious from a legal perspective.
The blogosphere will always make things sound worse than they are. But was it really that exaggerated this time. I don't think there intentions were as bad as it came off, but they made a huge mistake. There response was honestly not all that fast considering the instant shit storm this caused. If a million users complain about something immediately after it hits the feeds, and it takes them literally hours to say much of anything about it, there's an issue. The apology was not heartfelt, it wasn't sincere, and came off far more like like, "we're sorry you didn't understand."
I think instagram/facebook should be able to monetize, but I think today marks a gigantic mistake in their history, they went down in myspace fashion. Users dropping like flies, the amount of traffic on services like instaport.me and http://freethephotos.com/ is phenemonal.
I absolutely agree, the legal Terms of Service (ToS) are relevant and not some blogging about intensions. The legal text is in particular important because according to the ToS, you are now allowed to sue Instagram but you have to revert to arbitration.
This is a completely different style of incident response than parent company Facebook's. I much prefer this (relatively) straight up approach, although I'll admit it's more likely to come back and bite them in the arse a few years down the line.
I'm not saying it will, but that it's more likely to. No-one knows what technology brings to the table.
Eg. "it is not our intention to sell your photos"
But what if some kickass image analysis startup emerges that can mine valuable data from billions of pics. And then sell that data. So, just like Twitter with its firehose, Instagram licences its data to 3rd parties. They've just ruled that out (except they haven't, because licensing something is legally different to selling it, if not in substance).
It's a lawyer's job to leave terms as much in their client's favour as they can get away with. It would be foolish to close avenues for no reason. There's a balancing act with PR but overall I think Instagram were just unlucky here and handled it well.
They want to use your pictures to sell products to your friends. Say you take a picture of your friends at Domino's Pizza. They can show that picture to your friends and say "Look this guy who you know loves our pizza. Come try it out." Now you may not mind making an endorsement. But with this plan they don't have to ask you for permission. They can just do it.
And if you turn out to be a hit they can use it to sell the pizza to everyone not just your friends.
And if you're really a hit, they can use it to sell underwear. Or adult diapers. Or contraceptives. Or whatever you might not like them to use your imagery to sell.
Agree. It's pretty obvious where they are going with this. And from an advertiser's perspective, it's pretty sweet. Right now, the distinction they are trying to draw seems to be that they'll only use you to advertise things that you choose to follow.
But what's to stop them from your "implicit" endorsements of products/services you use from location data or with machine vision (something Google can already do with many logos in Street View imagery, I've discovered in my reporting)? Oh, that's right. Nothing. Which is why they don't want to have to ask for permission to do these things.
> "They can show that picture to your friends and say "Look this guy who you know loves our pizza. Come try it out.""
They actually can't. There's a world of difference between using a photo to depict an event, and using a photo to endorse.
"Domino's is featuring $5 large pizzas, here's your friend Bob at Domino's last week!" is legal.
"Look at Bob who loves our pizza, come try it out!" is not, unless Bob has signed off on it. You've crossed the line into commercial endorsement, which is a civil suit waiting to happen.
Now, there could potentially be an argument that depicting Bob at Domino's next to a paid message by Domino's is implied endorsement - that's something Instagram will have to figure out. IANAL, though I have studied commercial vs. editorial usage of photography reasonably deeply.
Using someone to endorse a product is a legally non-trivial proposition. It's not as simple as "we can use your photo here".
I fail to see the difference between the two examples. They both imply endorsement.
In both cases, Dominoes has paid Instagram to promote its product. In both cases, Instagram has taken a photo of Bob (taken by Bob? Taken by a friend of Bob's?) And attached it to a marketing effort on behalf of Dominoes. In neither case does the photo's subject (Bob) or its author (Bob?) have a say over the photo's use.
The difference is that one case is clearly explicit: when the ad says "Bob likes our pizza", Bob liking your pizza is an explicit endorsement. The other is more statement of fact: that Bob ate there. For all you know he could have hated it.
On the other hand, add the context of Facebook. What if Bob hit the like button in facebook? You could argue that hitting the button is an endorsement. Or perhaps if the ad is only displayed in a Facebook context where "like" is understood to mean pushing a button on a page, you could argue that the traditional meaning of "like" doesn't apply so it's not an endorsement.
Indeed, and that's the subtle (but significant) difference. I've noticed for example that in my Facebook feed it never says "Bob likes Pizza Hut", it says instead "Bob liked a page: Pizza Hut".
It certainly goes into a gray area - but something as explicitly as "Bob likes Domino's! You should get Domino's too!" is a legal minefield I doubt anyone would willingly wade into.
Yeah they could put your picture on the Domino's box, saying "Internet users eat here!" and all your friends think "What a dork." Pretty embarrassing and they didn't have to say one word about who you are or what you actually said. They can use the picture because you said they could. And I am not a lawyer, and bet that you aren't either. :-)
One of the main reasons these documents don’t take effect immediately, but instead 30 days from now, is that we wanted to make sure you had an opportunity to raise any concerns.
I see, they learned quite a bit from politicians. First push for the extremes, and if you get buried by bad press, produce a watered-down compromise.
Still, it is a surprisingly fair statement from a Facebook owned company.
Is it bad press? Or free advertising for their new features for promoting accounts? I don't think there was any downside to making the TOS changes the way they did.
Kevin Systrom is the man. To be acquired, be part of a public company and still respond quickly, succinctly and effectively their monetization plan is something a lot of companies can learn from.
Great, now all the bitching can change to be about their plans to advertise. The sense of entitlement that people have is getting ridiculous. Why do you deserve an absolutely free service?
We (consumers) deserve to have an honest description of how our data is and will be used. We also deserve to receive the service we signed up for and not have the ToS switched on us midway through the lifecycle of the product. The fact that that is happening is dishonest, and is called a "bait and switch" in most other industries.
>We also deserve to receive the service we signed up
No you don't. They can shut the whole thing down and don't owe you a damn thing.
If you don't like the new ToS, when they switch to them and an accept/decline option comes up in the app you can feel free to decline and delete the app.
No. I'll hold my judgement until I see the new TOS, but what they propose in this blog post is much more reasonable. If the new TOS reflect that, I see little reason to bitch about it.
I don't think users feel that way. What they want is to be acknowledged and respected for helping build the server to what it is today. No users = no service. Don't sell us out just because you chose to take money and sell for a cool bil.
Really? Only 5 days ago this was on the front page of HN: http://news.ycombinator.com/item?id=4917689. And what about the complaints of Twitter and Facebook ads? You can't say that people don't whine about companies monetizing via advertising.
The users didn't help build anything. Instagram built a cool service, and the users used it. They didn't build anything.
Now obviously network effects help something like this grow, but don't kid yourself. They aren't running a charity. They are running a business. At some point you have to start making money or the service just goes away. Then all that those amazing users "built" will be gone in a second when they flick the power switch.
They aren't running a charity, you're right about that. But I think they misrepresented their business by giving it away for free, knowing full-well that it won't be sustainable in the long run under that model. Their response? "Oh ok, no problem, we'll just switch the terms of use while nobody is looking."
You could characterize it that way, or you could assume that all of your users aren't complete fools and realize at some point they will have to make money to pay for the costs of running the service. They also know full-well that it isn't sustainable to run this service for free forever.
There is no lie. They offer the service for free. Nobody said they would never ever add ads. That's just being silly. What possible reason could people have for being angry with someone adding ads to this thing they are giving away for free.
Just because a company offers a service for free does not give it the (moral) right to try to sneak in changes to what you signed up for as a customer. Unfortunately, legally they can pretty much do whatever they want as long as they include enough fine print that nobody ever reads in the ToS. I think you are arguing from a legal perspective, which you're absolutely right about; I'm talking about "the right way to treat your customers" perspective.
If I as a customer pay any amount (including $0.00) and agree to the terms of service, the company should honor those terms, or, at the very least, be forthcoming with how they will handle my data.
The reason people are angry is because:
a) They didn't have any inclination of how Instagram will try to monetize. I think you are giving users way too much credit in how these startups work (ask your non-tech-savvy friends how Facebook or Google make money; I guarantee you will get blank stares). The customers who joined before Facebook took over signed a completely different set of ToS. Again, there is nothing obliging them legally to grandfather these customers, but it's not a nice thing to do "Thanks for the ToS. Btw, Facebook took over, so good luck!"
b) They tried to sneak in the changes and got caught. Nobody likes to have stuff done behind their back, so a big announcement with enough lead time to switch services would be nice. I don't use Instagram anyway, but I think this applies in general in how to treat your customers.
They know and they don't care. It's not a customer's prerogative to worry about how a company makes money. As much as people like Instagram, if it disappeared or went under, people would move on and forget about it. I would say that the onus is on the company to find a way to monetize that does not insult, mislead, or deride their users.
How does adding ads "insult, mislead, or deride their users"? This whole discussion is silly. 99% of the users will keep happily using the service with ads. They were smart enough to know they were coming eventually. A 1% very vocal minority will piss and moan on internet message boards about how pissed they are and how absurd it is that this coming isn't continuing to give away a nice service.
Everyone bitched when Facebook added ads, but guess what, they keep growing and people keep using it. Shocking.
That seems unlikely. They're still using Facebook. A few thousand people are paying App.net $50 a year and a billion people are using Facebook. I suspect people would rather have a few ads in their Instagram feed than start paying Flickr. Just a very vocal minority pissing and moaning because they can.
No one is asking for a free service. But businesses are giving it. I don't see why businesses deserve to monetize my private information. I'd gladly pay for a feature-rich gmail or facebook where my privacy was guaranteed. But no business is standing up to take my money.
The big psychological difference is that they are taking something that was free and then starting to charge/advertise versus having it be that way from the start. Kinda like how people would get annoyed if they have to pay to use the bathroom, or for napkins at a restaurant. Or checking you bags on an airplane. It's about setting expectations.
The other thing is that a lot of people use Instagram to share photos they only want their close friends seeing, so people are more sensitive about privacy changes.
I don't generally mind free services adding whatever advertising or other things they want, but imo it gets into considerably different territory when there's anything like a transfer of ownership or substantive licensing of ownership-like rights. Those kinds of transfers should be very explicit, where users consciously and knowingly agree, "yes, I agree to license this content for [x,y] use". Of course, Instagram claims they didn't do that here (though EFF's lawyers seem to disagree).
For example, I use Flickr as a free service, and I don't think they owe me anything. They could add advertising if they want, they could remove the free tier and shut down my account if I don't pay, they could shut down the service entirely, etc. That's all well within their rights, since they run the service. But imo it's a qualitative difference from those kinds of changes if they were to add new ToS terms claiming ownership or ownership-like rights over my photographs. That's very different because it can actually damage my career outside their service if I fail to notice the relevant ToS change and they grab some rights I didn't intend to license to them.
Hopefully the take-away is an explanation would have been helpful when the ToS was changed. Everyone was given limited information and they interpreted it how they could.
Maybe sites will think about this next time they quietly changed their ToS.
If they needed an explanation to say "the terms say this, but we don't really mean it" then perhaps they should just not release a ToS with stuff they don't actually mean.
It's little comfort for a company to say "oh the contract says X, but don't worry it's not true".
The take-away here is to actually properly review the ToS in light of "how might a user interpret this" not in "how can we make sure we have the absolute most coverage on our side".
A possible negative scenario: They grant themselves these rights and then get spun off / acquired by someone with malicious intent. The rights never expire... Can you guarantee that your company will respect the rights of users a decade from now? A century?
Also, you now can't ever sell exclusive rights[1], because there's a perpetual sub-licence capable party floating about out there.
[1] IANAL, but I think that's how it would work; for any licenceable aspect which you wish to grant exclusively, they can grant the same to one or more others, making it non-exclusive.
The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.
Interesting use of the present tense in the second sentence, in an "I am not having an affair with that woman" sort of way.
To late they lost my trust when facebook brought them, and even rumours of facebook behaviour was enough to walk away.
My account is now gone, same with atleast a dozen people I've talked to in the last day or so. I'd hazard a guess the quick response has been in response to sudden surge in accounts deleted.
That said, at least it looks like they're going to tweak the TOS change in favor of their users. But with Facebook pulling the reigns, we all know where this will end.
> The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.
Note that he doesn't say "we won't use your photos as part of an advertisement", he merely says "the reason we're removing that language is because we don't [currently] plan on using your photos as part of an advertisement".
I'm sure if they thought of a way they could make money by doing so without losing critical mass, they'd be all over that.
Its neither off-topic nor offensive, and because you don't have downvote privileges you had to comment instead - that's good because now I can respond and hopefully clarify.
It isn't off-topic because it is a direct response to it's parent who was trying to make a point by example that refers to this use of rhetoric
It isn't offensive because it is simply using the loaded question to provide a loaded answer that uses the exact same rhetorical trick to turn the tables. To try to show by example that the point being made is little more than a trick.
It is the nature of a loaded question with an obvious appeal to emotion that makes responses to it seem offensive.
It's a time-weathered rhetorical device, and probably wouldn't be effective if it weren't also somewhat offensive. Although responding to the device is... unusual.
I like how he said "The language we proposed ... " to refer to "Yesterday we introduced a new version of our Privacy Policy and Terms of Service that will take effect in thirty days."
It's a science fiction idea I think, but something that would also fly, given their statements, would be to show photos of people who look like your friends (Facebook have the machine learning / pattern matching capability) in order to influence your decisions; someone who looks like a great crush you had, dining at a nearby restaurant, for example.
This would neither necessarily fit into the classification of 'advertising', nor be showing photos to 'your friends', who would immediately call this kind of behaviour out. This would sorta tally with the fact that photos are public by default AFAIK, and the comments about privacy.
What do you mean they tried to sneak it in? They already had it there in the old TOS but no one bothered to read it, or at least they didn't care when Instagram had full rights to advertise with their photos before.
The new TOS actually limits what they an do more than the old one.
Oh for crying out loud, they did not try to "sneak this by".
Stop trying to cast a simple snafu regarding a ToS as some evil conspiracy.
Remember that the people running this company are you peers. It's disgusting watching the community salivating over burning them all at the stake today.
They're your friends, or just like your friends. Knock it off.
My peers and friends at least would never use my pictures to create ads and in any case, my relations to peer and friends are not based on comprehensive and one-sided ToS …
I disagree. This was a carefully worded response. Notice "commit to you that we will be doing more to answer your questions, fix any mistakes, and eliminate the confusion. As we review your feedback and stories in the press, we’re going to modify specific parts of the terms to make it more clear what will happen with your photos." They expected this.
It's a classic move from the Facebook playbook. Push out a far-reaching privacy policy or feature update. Release a message or press release saying that "we're listening". Make token changes and say "we've listened and made changes". And just in case people start to sue, vigorously lobby and donate to government officials to keep the regulatory heat off their backs.
They are trying to get away with as much as they can. These stupid companies are going to be the reason why 10 years from now the Internet is going to be a morass of government regulation.
Don't work for or support companies that act like this. Shame on them. Period.
I wouldn't be surprised if at some point soon you won't be able to register a domain name or start an Internet company without taking a licensing exam.
>I wouldn't be surprised if at some point soon you won't be able to register a domain name ... without taking a licensing exam.
Who would impose such a requirement of licensure? Certainly not the government --- that would be a prior restraint on freedom of speech/press and therefore unconstitutional.
Well, they would first impose it and then somebody sues them and it starts bouncing around various courts for the next 5 years. It would take some serious time until there would be a final ruling.
Man, this is some absolutely insane over the top hyperbole.
No one tried to cast this as a conspiracy, they simply called it what it is, a company monetizing by making the user experience worse.
"Remember that the people running this company are you peers. It's disgusting watching the community salivating over burning them all at the stake today."
I don't know whats craziest here. First, equating "burning them at the stake" to "deleting their accounts on that persons website" is absolute lunacy and I don't know how anyone could take your points seriously. Second, pretending that because these people look like my friends, they should get a free pass on changing their terms to better monetize user content is just lame, just because someone looks like me and is a millionaire doesn't make them immune to incredibly correct criticism.
But most likely it wouldn't make the user experince worse. If anything, it would allow them to avoid banner ads and make the experience better.
That said, sounds like people aren't willing to "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."
So people signed up for Instagram under their old terms, where everything quite literally did come to them for free. Now Instagram changed their terms to monetize peoples content. People don't like this and would not have joined originally with these terms. People STILL mock them for "expecting something for free".
Well, when you create the expectation, as Instagram did, that things will come for free, and then you stop fulfilling that expectation, customers will leave. Not sure how long it will take startup founders to understand and it blows my mind how frequently people on HN seem to act like people "owe" a site something for the service they're providing. If I get an invite to your free photosharing site with features X, Y and Z, you're creating an expectation. If you change your offering once you get a ton of users in the hopes of monetizing them, you're changing the offering and these people leaving is justified. The reason they got there in the first place was because of your offering, which you're now changing.
Your statement doesn't hold true because actual peers call each other out on bad moves, and the failure (or lack of attempt) to find an actual good move.
If we take your words as gospel, then we should be critical of them and we should take action.
This is also because Instagram as a business is not a peer, does not follow advice, and absolutely needs to be burnt at the stake (and salivated over?) to realise it made a mistake.
Remember that the people running this company are you peers. It's disgusting watching the community salivating over burning them all at the stake today. They're your friends, or just like your friends. Knock it off.
-- If not in jest, this is rediculously naive. just FYI.
In the blog post announcing the changes (http://blog.instagram.com/post/38143346554/privacy-and-terms...), they called out a "few key updates." The changes to the TOS were described as, "Our updated terms of service help protect you, and prevent spam and abuse as we grow."
Our "friends" over there sure didn't go out of their way to call out an important change in the TOS. If it wasn't an attempt to sneak this by, it's indistinguishable from one.
I particularly appreciate all their statements about "nothing HAS changed" which ring hollow when balanced against the fact that the changes aren't in effect and won't be for 30 days.
> That said, at least it looks like they're going to tweak the TOS change in favor of their users. But with Facebook pulling the reigns, we all know where this will end.
No they're not. This article from the Verge is weird. The important changes are in the copyright license. The instagram blog post is lying by omission.
Look at the former section
"Proprietary Rights in Content on Instagram"
> Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.
This section about copyright has turned into something pretty much like Facebook's:
> 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, available here:http://instagram.com/legal/privacy/.
> No they're not. This article from the Verge is weird. The important changes are in the copyright license.
A reply from the author of the article in the comments[0]:
> You guys know that I used to be a copyright lawyer, right? This stuff is all boilerplate terms of service — every service from Apple, Google, Microsoft, Twitter, etc all have it.
Well, I'm sorry that this guy can't read. I have read many different copyright licenses, and this copyright license is not "boilerplate". You can have very different copyright licenses for such web services. You can get an overview at http://tos-dr.info/topics.html#copyright-scope
His misinterpretation is getting it handed to him and the conflict of interest stuff re: The Verge and Instagram is something else to consider. I wouldn't trust a news outlet with so many close ties to companies like this.
> the conflict of interest stuff re: The Verge and Instagram is something else to consider. I wouldn't trust a news outlet with so many close ties to companies like this.
What are you talking about? Have you read their ethics statement[0] yet?
In the world of journalism, that's a very serious accusation to be making without any evidence.
No, you might want to read it. Here, I'll make it a little easier for you:
> Our company has its own advertising team responsible for selling ad space on our site. We do not accept money or other consideration from companies as a condition or incentive to write a review or story, whether favorable or unfavorable, on The Verge.
> We do not invest in companies that we cover, and employees are forbidden from owning, trading, or buying stock in companies we cover or companies in the general tech sector, without exception.
> We don't take free things from companies, or from their PR firms. This rule is simple and we stick to it
> We do not take free or discounted merchandise
> We do not take free or discounted services.
> Employees of The Verge may not be otherwise employed by or receive compensation from companies that they are likely to cover as part of their news beat, nor are they permitted to have any advisory role (paid or unpaid) at those companies.
> We do not accept any samples on any preconditions, such as, that we will agree to provide a review simply because the company sent us a sample.
It's funny how thin the ice he's skating on is, when he writes:
>"Ownership Rights: Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.
I always want you to feel comfortable sharing your photos on Instagram and we will always work hard to foster and respect our community and go out of our way to support its rights."
He should add in brackets that the user has automatically given Instagram "Ownership" of a gold plated license to do whatever the hell it wants with content posted, in case anyone was wondering.
I also noticed that they stepped short of saying they wouldn't be taking a non-exclusive perpetual license for any use out of the ToS. What does "ownership" mean in that case? Only that you can negotiate other deals with third parties.
It can mean that they cannot re-license your work, which is to say you wouldn't have to compete with them in terms of pricing to a third party but I don't know if that is what the ToS says so a closer reading is in order.
Licence is: "non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use"
So I would say "sub-license" means "re-license". It would be very unfortunate to have to compete with Instagram on pricing for your own content to a third party. Or some company that buys Instagram/Facebook out.
Just read this bit:
"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."
So I think that clears up the 'sub-licensable' aspect. It doesn't rule out giving them away for free - which come to think of it, would hard to compete with price-wise! I'm really starting to wonder what they had in mind.
While I agree that the facebook fears are probably overblown, the TOS' language does not comfort me at all. In fact, I think that the Verge is entirely wrong in that article(IANAL, etc.).
This TOS tweak allows Instagram go sell your content for advertising purposes to a third party. They can use your images, as is, in their advertising(presumably on Instagram, though that is not clear). So they can take payment for your content, without compensating you at all.
That's a pretty huge difference from Facebook's TOS. In there, they state that they will use your content to deliver ads. They're not delivering your content to other parties to be used in their ad campaign.
"That effectively guts the user's control over the use and exploitation of the photo," says Daniel Schaeffer, an attorney with Neal & McDevitt, a boutique law firm in Northfield, Ill., specializing in intellectual property. "The most obvious and immediate example is the ability to allow businesses to use your photos in advertising, but the actual effects could be even farther-reaching."
> And he is now making more money by not practicing law and as of today, shilling for Instagram.
As I explained to someone else in another comment[0], I suggest you not embarrass yourself any further by making baseless accusations about journalists who take impartiality very seriously.
> What's your point?
That the OP's link's author's professional qualifications are also possessed by the author of the post I linked, making that a moot factor.
He isn't just "in publishing", he frequently writes about legal topics for the Verge. For example, he covered the Google v. Oracle and Apple v. Samsung trials in great detail. However, if you're curious as to why he made the career choices he did, you can always ask him directly: https://twitter.com/reckless
I have no reason at this point to doubt his judgment, as he is clearly quite a capable individual, as he has managed to become the managing editor of one of the top tech news sites in an industry bursting with competition and upstarts.
Read your source more carefully, and stop selectively quoting. Systrom spoke of formal, written offers. The Twitter offer was a verbal agreement. I do not know my corporate contract law but it would surprise me if these were the same thing.
> Systrom was asked about formal offers. The Twitter offer was a verbal agreement.
Verbal contracts are still contracts. Written form is preferred because it's easier to enforce after-the-fact, not because it's required for legal contracts.
And either way, Systrom would have taken an oath to "tell the truth, and the whole truth". This type of glaring omission over quibbling about whether an offer was a "formal" offer or not would get most in trouble with the courts...
Uh, no. For a verbal agreement to be binding it must pass the same requirements as a written agreement. A few guys discussing a takeover is not a formal takeover offer any more than if they exchanged e-mails about it. I am no expert in securities law but the bar for contractual consideration has got to be very high.
There was a verbal offer with specific dollar amounts ($525 million, in fact), an offer specific enough that Instagram had to back out of it before it was signed. I'm not talking about filling out an SEC-mandated press release, I'm talking about a direct question from state lawyers about whether there were any offers from other companies besides Facebook, and Systrom lied and then tried to employ weasel words about "formal offers" to talk about something else.
Can you at least read the article before talking about generalities of mergers&acquisitions?
What the hell? Responding carefully and specifically to a lawyer's question is not suspicious, it's standard operating practice whenever lawyers are involved. Systrom has no obligation to spill the beans about anything that some guy on the Internet thinks might be called an offer, and courtrooms have rules against assigning malicious interpretations thereunto.
I like this response. Terms of Service often need to change over time and, as of late, the Internet seems to have made a game out of ripping the changes to shreds when put forward by a known brand.
I'm looking forward to seeing how companies handle ToS changes moving forward. Is there a way to avoid the backlash altogether?
Err, write TOSes that are not a land grab of other people's intellectual private property and/or private data? You make it sound like it is unreasonable to care about that.
Why don't they just offer to share some of the profit of selling/using the photos? I think this would gain more users who would not mind being in promotional post, as long as they get a cut.
When you're getting into bed with Facebook, writing poor terms of service in the same week that you lie about acquisition offers is a pretty damn good way of souring the well. If they revise the ToS and remove the offending sections, good, but for some, it will already be too late.
This was exactly what I stuck with me. Intention can be either direct or indirect. So they could sell something as a package, which would be indirectly selling something, http://en.wikipedia.org/wiki/Intention_(criminal_law) . I'm no lawyer, but it does sound like that statement had the once over by a few.
There seems to be a disconnect between the TOS and this statement. If/when it comes down to brass tacks, a legal agreement between the Instagram and its users trumps a blog post about intentions. Talk is cheap -- codify the intentions expressed in the blog post in a TOS revision before the current changes take effect.
It's difficult to believe that the language of the ToS communicates things they 'don't intend', Especially following this potential Twitter-acquisition / possible perjury situation.
Also, lets not forget that this is not a startup talking to us anymore--this is a Facebook-owned company. I would expect Facebook to take full advantage of their intentionally vague legal wording.
Although with that said, they don't need to stop the bleeding as much as shut up the major negative press about it, and this statement will probably do that.
Same here. I'm also working on deleting my FB account. That one is a lot harder to do because so many of the small businesses and artists that I follow have abandoned maintaining their own blog/website in favor of just using FB.
I don't want "innovative advertising that feels appropriate on Instagram" any more than I want what Facebook has done with advertising in my timeline. Please just give me an option to pay a monthly fee to turn all that garbage off.
I've paid for and really enjoyed Flickr's Pro service for years. The fact that they just released a really nice app made it easy to kill my Instagram account once and for all today (I'd thought about it when they first got acquired by Facebook, but never followed through).
I guess you still need to work on your language, Can't you just use clear sentences with straight meanings ?
e.g.
> we respect that your photos are your photos. Period
wouldn't it be better to just say "we are not going to use your photos without your permission ? "
What the blogosphere seemed to miss when getting all crazy about Instagram selling their pictures to businesses for advertising: what business in their right mind would want the bad press that would go along with exploiting Instagram users? The first time a business used a user's picture without their knowledge, the Internet would go crazy with rage, and rightfully so. It was never going to work that way, because businesses wouldn't want to be part of that game any more than the users would.
The FUD that CNet was able to perpetrate far outweighs any reasonable outcome that I can foresee. For this reason, I take Kevin at his word: both that they aren't going to do stupidly publish user pics on the side of buses, and that they will learn from this blunder.
Let’s say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way.
Isn't this just exactly how facebook fooled the world? You pay x to gain y followers and when they have bleed that river dry, they roll out another update that requires you to pay z if you want your posts to show up in their feed?
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[ 4.2 ms ] story [ 186 ms ] threadIt did the right thing responding so quickly to user feedback. Hopefully it'll result in a TOS that lets Instagram monetize without infringing on the privacy of its users.
And maybe just maybe they will review further TOS changes before unleashing them. If these terms were really against Instagram's plans, it's almost even more pathetic.
After reading some of the TOS changes and this blog post it really seems like a case of overzealous lawyering - trying to cover Instagram for all possible uses of the photos.
Not as Proper Noun Legal Advice, but more as a set of things which might be a concern, and you should have your own qualified legal counsel examine in detail if desired)
I can think of all sorts of problems though; malpractice, negligence, copyright infringement of ToS, libel for misinterpretations, and many more besides. Maybe that's why it doesn't (can't?) exist.
What I don't get is why Instagram doesn't just let users pay for the value they are obviously receiving from the service.
http://blog.peterdonis.com/opinions/your-cloud-data-not-your...
I think instagram/facebook should be able to monetize, but I think today marks a gigantic mistake in their history, they went down in myspace fashion. Users dropping like flies, the amount of traffic on services like instaport.me and http://freethephotos.com/ is phenemonal.
In other news, flickr came back from the grave.
Eg. "it is not our intention to sell your photos"
But what if some kickass image analysis startup emerges that can mine valuable data from billions of pics. And then sell that data. So, just like Twitter with its firehose, Instagram licences its data to 3rd parties. They've just ruled that out (except they haven't, because licensing something is legally different to selling it, if not in substance).
It's a lawyer's job to leave terms as much in their client's favour as they can get away with. It would be foolish to close avenues for no reason. There's a balancing act with PR but overall I think Instagram were just unlucky here and handled it well.
And if you turn out to be a hit they can use it to sell the pizza to everyone not just your friends.
And if you're really a hit, they can use it to sell underwear. Or adult diapers. Or contraceptives. Or whatever you might not like them to use your imagery to sell.
But what's to stop them from your "implicit" endorsements of products/services you use from location data or with machine vision (something Google can already do with many logos in Street View imagery, I've discovered in my reporting)? Oh, that's right. Nothing. Which is why they don't want to have to ask for permission to do these things.
They actually can't. There's a world of difference between using a photo to depict an event, and using a photo to endorse.
"Domino's is featuring $5 large pizzas, here's your friend Bob at Domino's last week!" is legal.
"Look at Bob who loves our pizza, come try it out!" is not, unless Bob has signed off on it. You've crossed the line into commercial endorsement, which is a civil suit waiting to happen.
Now, there could potentially be an argument that depicting Bob at Domino's next to a paid message by Domino's is implied endorsement - that's something Instagram will have to figure out. IANAL, though I have studied commercial vs. editorial usage of photography reasonably deeply.
Using someone to endorse a product is a legally non-trivial proposition. It's not as simple as "we can use your photo here".
In both cases, Dominoes has paid Instagram to promote its product. In both cases, Instagram has taken a photo of Bob (taken by Bob? Taken by a friend of Bob's?) And attached it to a marketing effort on behalf of Dominoes. In neither case does the photo's subject (Bob) or its author (Bob?) have a say over the photo's use.
On the other hand, add the context of Facebook. What if Bob hit the like button in facebook? You could argue that hitting the button is an endorsement. Or perhaps if the ad is only displayed in a Facebook context where "like" is understood to mean pushing a button on a page, you could argue that the traditional meaning of "like" doesn't apply so it's not an endorsement.
It certainly goes into a gray area - but something as explicitly as "Bob likes Domino's! You should get Domino's too!" is a legal minefield I doubt anyone would willingly wade into.
I see, they learned quite a bit from politicians. First push for the extremes, and if you get buried by bad press, produce a watered-down compromise.
Still, it is a surprisingly fair statement from a Facebook owned company.
http://bits.blogs.nytimes.com/2012/12/16/disruptions-instagr...
If you don't like the new ToS, when they switch to them and an accept/decline option comes up in the app you can feel free to decline and delete the app.
Now obviously network effects help something like this grow, but don't kid yourself. They aren't running a charity. They are running a business. At some point you have to start making money or the service just goes away. Then all that those amazing users "built" will be gone in a second when they flick the power switch.
If I as a customer pay any amount (including $0.00) and agree to the terms of service, the company should honor those terms, or, at the very least, be forthcoming with how they will handle my data.
The reason people are angry is because:
a) They didn't have any inclination of how Instagram will try to monetize. I think you are giving users way too much credit in how these startups work (ask your non-tech-savvy friends how Facebook or Google make money; I guarantee you will get blank stares). The customers who joined before Facebook took over signed a completely different set of ToS. Again, there is nothing obliging them legally to grandfather these customers, but it's not a nice thing to do "Thanks for the ToS. Btw, Facebook took over, so good luck!"
b) They tried to sneak in the changes and got caught. Nobody likes to have stuff done behind their back, so a big announcement with enough lead time to switch services would be nice. I don't use Instagram anyway, but I think this applies in general in how to treat your customers.
Everyone bitched when Facebook added ads, but guess what, they keep growing and people keep using it. Shocking.
The other thing is that a lot of people use Instagram to share photos they only want their close friends seeing, so people are more sensitive about privacy changes.
For example, I use Flickr as a free service, and I don't think they owe me anything. They could add advertising if they want, they could remove the free tier and shut down my account if I don't pay, they could shut down the service entirely, etc. That's all well within their rights, since they run the service. But imo it's a qualitative difference from those kinds of changes if they were to add new ToS terms claiming ownership or ownership-like rights over my photographs. That's very different because it can actually damage my career outside their service if I fail to notice the relevant ToS change and they grab some rights I didn't intend to license to them.
Maybe sites will think about this next time they quietly changed their ToS.
It's little comfort for a company to say "oh the contract says X, but don't worry it's not true".
The take-away here is to actually properly review the ToS in light of "how might a user interpret this" not in "how can we make sure we have the absolute most coverage on our side".
They were granting themselves irrevokable rights to do things people didn't ever want them to be able to do.
[1] IANAL, but I think that's how it would work; for any licenceable aspect which you wish to grant exclusively, they can grant the same to one or more others, making it non-exclusive.
Interesting use of the present tense in the second sentence, in an "I am not having an affair with that woman" sort of way.
My account is now gone, same with atleast a dozen people I've talked to in the last day or so. I'd hazard a guess the quick response has been in response to sudden surge in accounts deleted.
While under oath, Kevin Systrom: “No, we never received any offers,”
Reality, Instagram had an offer from Twitter and Kevin Systrom had direct knowledge.
http://bits.blogs.nytimes.com/2012/12/16/disruptions-instagr...
That said, at least it looks like they're going to tweak the TOS change in favor of their users. But with Facebook pulling the reigns, we all know where this will end.
> The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.
Note that he doesn't say "we won't use your photos as part of an advertisement", he merely says "the reason we're removing that language is because we don't [currently] plan on using your photos as part of an advertisement".
I'm sure if they thought of a way they could make money by doing so without losing critical mass, they'd be all over that.
It isn't off-topic because it is a direct response to it's parent who was trying to make a point by example that refers to this use of rhetoric
http://en.wikipedia.org/wiki/Loaded_question
It isn't offensive because it is simply using the loaded question to provide a loaded answer that uses the exact same rhetorical trick to turn the tables. To try to show by example that the point being made is little more than a trick.
It is the nature of a loaded question with an obvious appeal to emotion that makes responses to it seem offensive.
This would neither necessarily fit into the classification of 'advertising', nor be showing photos to 'your friends', who would immediately call this kind of behaviour out. This would sorta tally with the fact that photos are public by default AFAIK, and the comments about privacy.
Hopefully irrelevant, but just a thought.
The new TOS actually limits what they an do more than the old one.
Stop trying to cast a simple snafu regarding a ToS as some evil conspiracy.
Remember that the people running this company are you peers. It's disgusting watching the community salivating over burning them all at the stake today.
They're your friends, or just like your friends. Knock it off.
See also: Banking.
My peers and friends at least would never use my pictures to create ads and in any case, my relations to peer and friends are not based on comprehensive and one-sided ToS …
edit: give me a $1
It's a classic move from the Facebook playbook. Push out a far-reaching privacy policy or feature update. Release a message or press release saying that "we're listening". Make token changes and say "we've listened and made changes". And just in case people start to sue, vigorously lobby and donate to government officials to keep the regulatory heat off their backs.
They are trying to get away with as much as they can. These stupid companies are going to be the reason why 10 years from now the Internet is going to be a morass of government regulation.
Don't work for or support companies that act like this. Shame on them. Period.
I wouldn't be surprised if at some point soon you won't be able to register a domain name or start an Internet company without taking a licensing exam.
Who would impose such a requirement of licensure? Certainly not the government --- that would be a prior restraint on freedom of speech/press and therefore unconstitutional.
No one tried to cast this as a conspiracy, they simply called it what it is, a company monetizing by making the user experience worse.
"Remember that the people running this company are you peers. It's disgusting watching the community salivating over burning them all at the stake today."
I don't know whats craziest here. First, equating "burning them at the stake" to "deleting their accounts on that persons website" is absolute lunacy and I don't know how anyone could take your points seriously. Second, pretending that because these people look like my friends, they should get a free pass on changing their terms to better monetize user content is just lame, just because someone looks like me and is a millionaire doesn't make them immune to incredibly correct criticism.
That said, sounds like people aren't willing to "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."
I can't believe that people just expect everything to come to them for free.
Well, when you create the expectation, as Instagram did, that things will come for free, and then you stop fulfilling that expectation, customers will leave. Not sure how long it will take startup founders to understand and it blows my mind how frequently people on HN seem to act like people "owe" a site something for the service they're providing. If I get an invite to your free photosharing site with features X, Y and Z, you're creating an expectation. If you change your offering once you get a ton of users in the hopes of monetizing them, you're changing the offering and these people leaving is justified. The reason they got there in the first place was because of your offering, which you're now changing.
If we take your words as gospel, then we should be critical of them and we should take action.
This is also because Instagram as a business is not a peer, does not follow advice, and absolutely needs to be burnt at the stake (and salivated over?) to realise it made a mistake.
-- If not in jest, this is rediculously naive. just FYI.
Our "friends" over there sure didn't go out of their way to call out an important change in the TOS. If it wasn't an attempt to sneak this by, it's indistinguishable from one.
I think the fears are really overblown: http://www.theverge.com/2012/12/18/3780158/instagrams-new-te...
Look at the former section "Proprietary Rights in Content on Instagram"
> Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.
This section about copyright has turned into something pretty much like Facebook's:
> 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, available here:http://instagram.com/legal/privacy/.
A reply from the author of the article in the comments[0]:
> You guys know that I used to be a copyright lawyer, right? This stuff is all boilerplate terms of service — every service from Apple, Google, Microsoft, Twitter, etc all have it.
0: http://www.theverge.com/2012/12/18/3780158/instagrams-new-te...
As you can see, the new Instagram © license is like Facebook's or Twitter's. But very different from others. (Actually, the current Instagram © license is okay)
I'd very much like to see how he responds.
What are you talking about? Have you read their ethics statement[0] yet?
In the world of journalism, that's a very serious accusation to be making without any evidence.
0: http://www.theverge.com/ethics-statement
You might want to read the link you posted.
> Our company has its own advertising team responsible for selling ad space on our site. We do not accept money or other consideration from companies as a condition or incentive to write a review or story, whether favorable or unfavorable, on The Verge.
> We do not invest in companies that we cover, and employees are forbidden from owning, trading, or buying stock in companies we cover or companies in the general tech sector, without exception.
> We don't take free things from companies, or from their PR firms. This rule is simple and we stick to it
> We do not take free or discounted merchandise
> We do not take free or discounted services.
> Employees of The Verge may not be otherwise employed by or receive compensation from companies that they are likely to cover as part of their news beat, nor are they permitted to have any advisory role (paid or unpaid) at those companies.
> We do not accept any samples on any preconditions, such as, that we will agree to provide a review simply because the company sent us a sample.
> This stuff is all boilerplate terms of service — every service from Apple, Google, Microsoft, Twitter, etc all have it.
>"Ownership Rights: Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period. I always want you to feel comfortable sharing your photos on Instagram and we will always work hard to foster and respect our community and go out of our way to support its rights."
He should add in brackets that the user has automatically given Instagram "Ownership" of a gold plated license to do whatever the hell it wants with content posted, in case anyone was wondering.
It can mean that they cannot re-license your work, which is to say you wouldn't have to compete with them in terms of pricing to a third party but I don't know if that is what the ToS says so a closer reading is in order.
So I would say "sub-license" means "re-license". It would be very unfortunate to have to compete with Instagram on pricing for your own content to a third party. Or some company that buys Instagram/Facebook out.
Just read this bit: "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."
So I think that clears up the 'sub-licensable' aspect. It doesn't rule out giving them away for free - which come to think of it, would hard to compete with price-wise! I'm really starting to wonder what they had in mind.
This TOS tweak allows Instagram go sell your content for advertising purposes to a third party. They can use your images, as is, in their advertising(presumably on Instagram, though that is not clear). So they can take payment for your content, without compensating you at all.
That's a pretty huge difference from Facebook's TOS. In there, they state that they will use your content to deliver ads. They're not delivering your content to other parties to be used in their ad campaign.
"That effectively guts the user's control over the use and exploitation of the photo," says Daniel Schaeffer, an attorney with Neal & McDevitt, a boutique law firm in Northfield, Ill., specializing in intellectual property. "The most obvious and immediate example is the ability to allow businesses to use your photos in advertising, but the actual effects could be even farther-reaching."
FWIW, the author of the Verge post I linked, managing editor Nilay Patel, also holds a law degree, and previously worked as a copyright attorney.
As I explained to someone else in another comment[0], I suggest you not embarrass yourself any further by making baseless accusations about journalists who take impartiality very seriously.
> What's your point?
That the OP's link's author's professional qualifications are also possessed by the author of the post I linked, making that a moot factor.
0: http://news.ycombinator.com/item?id=4940331
I have no reason at this point to doubt his judgment, as he is clearly quite a capable individual, as he has managed to become the managing editor of one of the top tech news sites in an industry bursting with competition and upstarts.
Verbal contracts are still contracts. Written form is preferred because it's easier to enforce after-the-fact, not because it's required for legal contracts.
And either way, Systrom would have taken an oath to "tell the truth, and the whole truth". This type of glaring omission over quibbling about whether an offer was a "formal" offer or not would get most in trouble with the courts...
Can you at least read the article before talking about generalities of mergers&acquisitions?
You know - just like the terms and conditions.
I'm looking forward to seeing how companies handle ToS changes moving forward. Is there a way to avoid the backlash altogether?
Err, write TOSes that are not a land grab of other people's intellectual private property and/or private data? You make it sound like it is unreasonable to care about that.
The predominant backlash to Google's recent ToS changes come to mind as an example of selective content being reported out of context.
That is less clear than saying "We will not sell your photos." It's either a knowingly slippery statement, or they forgot how to not be slippery.
Also, lets not forget that this is not a startup talking to us anymore--this is a Facebook-owned company. I would expect Facebook to take full advantage of their intentionally vague legal wording.
Although with that said, they don't need to stop the bleeding as much as shut up the major negative press about it, and this statement will probably do that.
Well, not everybody thinks about worst case scenarios.
What it really gets to is that there really aren't very good/affordable resources for artists and venues to reach a large audience.
Hiring a local "designer" is often really expensive and you end up with a crappy website that is hard to maintain.
Even using something as "simple" as WordPress can be way too technical for a lot of people.
FB has the benefit of giving them a platform that enables them to quickly connect with their audience.
I see it as a failure of the rest of the internet ecosystem.
The FUD that CNet was able to perpetrate far outweighs any reasonable outcome that I can foresee. For this reason, I take Kevin at his word: both that they aren't going to do stupidly publish user pics on the side of buses, and that they will learn from this blunder.
Isn't this just exactly how facebook fooled the world? You pay x to gain y followers and when they have bleed that river dry, they roll out another update that requires you to pay z if you want your posts to show up in their feed?