Time to Read Those Terms of Service

Image via Wall Street Journal

Today a lot of people, understandably, got upset over the updated Instagram Terms of Service. Specifically this section (Rights point 2 & 3):

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.

Now, I believe this is in reference to a Sponsored Story or Promoted Post/Tweet/Trend style advert that will sit within the photo based social network. This would fit with its parent company’s current style of advertising. I don’t think we’ll be seeing Instagram images appearing on the side of buses, in TV, YouTube or banner ads across the web…however it is certainly open enough to allow that. Perhaps this is intended to allow for a fire hose type deal with brands and developers like the one that Twitter offers. I have seen Tweets used everywhere and I’m pretty sure the Tweeters weren’t notified, a fact perhaps more people need to think about (and when you read the Twitter ToS below you will realise just how similar they are).

This isn’t really the point though. People are upset because they love Instagram, it was the social network that allowed them to express themselves (whether artistically or not) through images and wasn’t one of the big tech corporations who people have recently been finding it harder to trust. Now with this change in the ToS (that will come into affect on January 16th 2013) the ball has dropped that now Instagram is truly part of Facebook and is mixing it up with the likes of Twitter etc.

On a further note Instagram still makes it clear that you own your content.

If you thought it was all about the Photo Filter Wars you may have been mistaken. This is the data wars and the users are providing the ammunition.

What struck me today was really how little people seem to know about all the online services legal terms. Instagram’s ToS update would appear to have woken some people up to the fact that it is increasingly important to read through and check what you are signing up for and importantly what you are signing away. So I have gone through different terms provided by some of the most popular services and pulled out sections to highlight what we are signing up for. To remain on topic I have picked out sections to do with peoples content. (Word of warning, this is a very long post as I didn’t want to take anything out of context or misinterpret. What follows is copied directly from these companies ToS).

Facebook:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

Google:

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide licence to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights that you grant in this licence are for the limited purpose of operating, promoting and improving our Services, and to develop new ones. This licence continues even if you stop using our Services (for example, for a business listing that you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure that you have the necessary rights to grant us this licence for any content you submit to our Services.

Many of our services let you share information with others. Remember that when you share information publicly, it may be indexable by search engines, including Google. Our services provide you with different options on sharing and removing your content.

With your consent – We will share personal information with companies, organizations or individuals outside of Google when we have your consent to do so. We require opt-in consent for the sharing of any sensitive personal information.

Twitter:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

Tumblr:

Subscribers retain ownership of all intellectual property rights in their Subscriber Content, and Tumblr and/or third parties retain ownership of all intellectual property rights in all Content other than Subscriber Content.

When you transfer Subscriber Content to Tumblr through the Services, you give Tumblr a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of (including, without limitation, by Reblogging, as defined below), such Subscriber Content. The rights you grant in this license are for the limited purpose of operating the Services in accordance with their functionality, improving the Services, and allowing Tumblr to develop new Services. The reference in this license to “derivative works” is not intended to give Tumblr itself a right to make substantive editorial changes or derivations, but does enable Tumblr Subscribers to redistribute Subscriber Content from one Tumblr blog to another in a manner that allows Subscribers to, e.g., add their own text or other Content before or after your Subscriber Content.

You also agree that this license includes the right for Tumblr to make all publicly-posted Content available to third parties selected by Tumblr, so that those third parties can distribute and/or analyze such Content on other media and services.

Note also that this license to your Subscriber Content continues even if you stop using the Services, primarily because of the social nature of Content shared through the Services – when you post something publicly, others may choose to comment on it, making your Content part of a social conversation that cannot later be erased without retroactively censoring the speech of others.

Pinterest:

Pinterest allows you to post content, including photos, comments, and other materials. Anything that you post or otherwise make available on our Products is referred to as “User Content.” You retain all rights in, and are solely responsible for, the User Content you post to Pinterest.

You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products. Nothing in these Terms shall restrict other legal rights Pinterest may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies.

LinkedIn:

You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. Additionally, you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including, but not limited to, any user generated content, ideas, concepts, techniques or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted in Sections 2 and 3 of this Agreement.

In order to deliver relevant and valuable ads to you and your network, LinkedIn may use your name and profile photo in connection with social advertising based on content shared on LinkedIn. This advertising may include the fact that you have recommended or endorsed a product or service on LinkedIn, followed a company, joined Groups or conversations, established or added content to your profile, etc., and will only be displayed to your LinkedIn network. You can opt-out of allowing your name and/or profile photo to be used in social ads here.

Soundcloud:

Any and all audio, text, photos, pictures, graphics, comments, and other content, data or information that you upload, store, transmit, submit, exchange or make available to or via the Platform (hereinafter “Your Content“) is generated, owned and controlled solely by you, and not by SoundCloud.

By uploading Your Content to the Platform, you also grant a limited, worldwide, non-exclusive, royalty-free, fully paid up, licence to other users of the Platform, and to users of any other websites, apps and/or platforms to which Your Content has been shared or embedded using the Services (“Linked Services”), to use, copy, transmit or otherwise distribute, publicly display, publicly perform, prepare derivative works of, make available and otherwise communicate to the public Your Content within the parameters set by you using the Services. You can limit and restrict the availability of certain of Your Content to other users of the Platform, and to users of Linked Services, at any time using the settings on the sound page for each sound you upload, subject to the provisions of the Disclaimer section below.

YouTube:

You retain all of your ownership rights in your Content, but you are required to grant limited licence rights to YouTube and other users of the Service. These are described in paragraph 8 of these Terms (Rights you licence).

When you upload or post Content to YouTube, you grant:

to YouTube, a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, and perform that Content in connection with the provision of the Service and otherwise in connection with the provision of the Service and YouTube’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels;

to each user of the Service, a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content to the extent permitted by the functionality of the Service and under these Terms.

Before I continue I cannot recommend more highly that you go through these terms of service yourself (each heading is a direct link) to get an idea of where these sections sit and what exactly the platforms are saying. Hopefully I haven’t taken anything out of context, however if I have I apologise and will rectify any errors that you may spot and wish to flag with me.

Recognise anything in those paragraphs? I think that Twitter’s ToS especially reflects Instagram’s recent updates which highlights for me what many have been saying for a while and that is that Instagram is the visual version of Twitter. The major difference is of course that Instagram have been extremely explicit in their language about their intention to potentially use an individuals images in advertising products. This is actually quite refreshing if not alarming for many users.

People definitely are more protective over their images than their words. This is why Twitter has been able to operate in the way it has been for a long time now with little backlash from the mainstream audience. It is also why they will be able to operate in the same way with the images that people increasingly will upload directly to Twitter’s servers, people are used to the idea that their Twitter content will be repurposed by brands and other companies. Instagram has a harder battle to get to this stage.

What I would like to see is a program from Instagram similar to the YouTube Partner Program. Instagram seems to almost constantly refer to itself in interviews as ‘Facebook’s YouTube’ so perhaps a revenue sharing program with people who post the most popular images is on the cards in the future.

One final note. After going through so many Terms of Service (I would have posted Flickr’s but I got lost in their legals ramblings…I might try again when my headache goes away) I must say that Facebook’s ToS is the clearest, most concise and easiest to understand (in my opinion). Tumblr, Twitter and Pinterest also do a good job of translating what each section means to the individual. Considering how often Facebook seem to come under pressure about privacy and their terms it is no surprise that perhaps they are the ones who have the most concise ToS.

So what do you think? Will there be a mass exodus from Instagram or is this just another moment where people get upset but quickly move on?

Further reading – check out these articles from Wall Street Journal, New York Times and finally this very thoughtful Google+ post from Wil Wheaton. Another article worth reading is from The Verge.

Update – It looks like Instagram might be having second thoughts.

Update 2 – Kevin Systrom has just posted this blog post.

“I’m writing this today to let you know we’re listening and to commit to you that we will be doing more to answer your questions, fix any mistakes, and eliminate the confusion. 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.”

“…it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.”

P.s. Yes I know Flickr has a different rights system.

2 thoughts on “Time to Read Those Terms of Service

  1. Thorough work, Sam. Spookily similar wording. You make a great point about te different user expectations though between twitter and Instagram and why we’re not throwing our toys out of the pram because Twitter uses our content. It’s because we quite like that part of it. I’m also wondering why, in the obvious desire to monetize (eurgh, I just sicked in my mouth) the Instagram product did they not canvas opinion on charging people? Even a small amount per year? Seems to work for Spotify and Flickr. People actually liked the Instagram service. I think I’d have been happy to pay a couple of dollars per year.

    • Thanks Nick!

      I am surprised that they haven’t asked the communities opinion. Although considering how few voted in Facebook’s last poll it perhaps isn’t that surprising. Traditional ads could definitely jar with the Instagram experience so other monetization methods should be considered you are right. Part of me does feel that now Instagram is a part of Facebook (and as long as Facebook keeps building on its profit margin each year) is there really a need to monetize the platform? I am sure as well they could charge a decent amount for brand profiles and analytics alongside access to the API.

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