What Jessie Did Next...

...being the inane ramblings of a mundane Yorkshire bird.

Oh dear oh dear, Instagram, bad move. As widely reported elsewhere in the past 24 hours, the biggest photo-sharing platform on the planet – acquired some months ago for $1bn by Facebook – has released new T&Cs. From their blog it looks like a good thing: “our updated terms of service help protect you, and prevent spam and abuse as we grow.” Bravo!

Except it’s not. There’s a couple of important points hidden here under the ‘Rights’ section:

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. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

Quite a few journalists have pointed out this gives Instagram the rights to monetise your photos without any compensation – C|Net have the best article on it that I’ve seen so far. Bad times.

Of course what you might say is “hah, who’s interested in my holiday snaps?”. I suspect Internet blogger Poppy Dinsey asked the same question before her blog images were hijacked to advertise a porn site. It happens, and it could happen to your photos, crap filters and all. And in a rare invocation of think of the childrennnnnnn it could happen to pics of your kids too. Heck, a friend’s just pointed out that if you’ve popped up some photos and you happen to be a teacher, you’ll now be in flagrant breach of the DPA too (although what part I don’t know, I haven’t investigated that yet).

Being pragmatic here, I think it’ll get retracted or at least an opt-out added – it’s not the first photo hosting service to have tried this. But just in case they don’t, Wired have published steps to downloading then removing your Instagram account.

More concerning is that this sets a precedent for Facebook: There’s been rumours about them doing it for a while (and that’s all they’ve been – rumours) but given who owns Instagram I can only think it’s a matter of time before the rumour become reality despite denials in late November. That for me is the bigger worry: as a photographer I use Facebook to promote my work. My images are of suitably low resolution and are watermarked (most of the time), but even with that ‘protection’ I don’t want to worry that Facebook will put that into an advert – that’s what people pay me for.

Finally, it feels like it’s a blow for the whole ‘cloud’ concept. If a company can retrospectively apply copyright (Instagram’s T&Cs will come into effect in January but apply to your entire image archive) then what hope for other cloud providers? Will Dropbox do it? What about Flickr? YouTube? Tumblr? For creative people will the only ‘safe’ option now be to run your own site?

What a mess. I’m so glad I’m not in that industry any more.

Update: BBC News have an article about it now.

5 Comments

  1. The problem is the culture of “free”. If you don’t pay for it, you are the product being sold.

  2. Would Flickr go down that road, though? I don’t know about Instagram, but as Flickr has a paid service open to users, would they not be shooting the goose that laid the golden egg (couldn’t think of a better analogy!) by introducing that kind of amendment to their T&Cs?

    • @Rob Woods – Flickr did get some flack from their T&Cs a few years back i seem to remember, i think the problem is companies say to their lawyers “here’s what we need to be able to do for our service”, and the lawyers get paranoid, dont really understand all this new fangled technology and try to come up with a provision as generic and all encompassing as possible, which The Internet then freaks out about assuming the company will do what the T&Cs theoretically could allow – in flickr’s case the contentious point was that you give them world-wide permission to reproduce your work for no payment, and that they can sub-licence the work to other 3rd parties. This sounds scary and could be abused, but in reality they need that just to cover the way the service operates – ie displaying your photos on a web-page, and allowing mash-ups to use the image via an API (i think they subsequently revised their T&Cs to spell it out more clearly).

      In instagrams case, as sh*te as those T&Cs are (and should be changed), i don’t doubt the intended usage is so that companies can sponsor hashtags and then provision the displaying of an advert in relation to you – eg “Your friend Rick Harrison has posted an image on Instagram. This photo is brought to you by Nike” if i use the hashtag “trainers” (given Facebook already display targeted adverts at your friends based on the pages you like – something i personally loathe).

      I think there’s a lot of interesting legal issued still to be played out in all this – can they *really* assume parental consent for an under 18? Also, what if the photo contains a person other than the photographer – GettyImages want consent of the featured person/building written in triplicate in blood to sell a photo as stock, as there’s a whole load of world-wide licencing implications in using someone particularly in advertising – if someone like nike just run adverts based on a hashtag, are they liable if someone appearing in a photo then complains if they feel they’re being shown in a way that implies they endorse the product?

      I think it’s also pretty interesting that the business model for tech startups has changed in recent years – flickr used to be the poster-boy of “free with advertising, or pay a subscription for no adverts and extra features”, where these days it appears customary that you burn a mountain of investment cash offering a polished product for free without any advertising, then when you’ve a big enough userbase and can afford to piss them off a bit you try to exploit them for financial gain. Personally i much prefer the former over the (to my mind quite grubby) latter. I think it’ll be interesting how the latter companies work out in the longer term – places like facebook i have absolutely no sense of loyalty to – they’ll do whatever they can behind my back to make money off me – the only reason many people haven’t left is cos of the inertia of all your friends being there – feels more like a protection racket than a business in that case?

  3. John_R in Western Australia

    December 18, 2012 at 11:26 pm

    And the climb down begins … http://www.bbc.co.uk/news/technology-20777616

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