The truth about Instagram

I have chosen a very bold title for this post: “The Truth About Instagram”. It is such a bold title that I feel like I should be writing a report on a police cover-up, political uprising or UFOs. As it is I am writing about Instagram, that’s right that photo app you use to make it look as if you are kooky and cool and have some ability as a photographer.

If you have read the news over the last couple of days you will be aware of the uproar surrounding Instagram’s new terms of service, which are effective as of 16 January 2013 ( a date seemingly plucked from a jaunty angled flat cap). Basically back in April Facebook bought Instagram for a whopping $1bn (£616m or €758m depending on where you are reading this), Facebook’s legal guys were then set loose on the Terms of Service and, unsurprisingly, came back with something that looks very similar to Facebook’s Terms of Service.

In particular changes were made as to the use that Instagram may make of the images that you upload to their service (I use ‘you’ as I presume that if you are reading this post then you are an Instagram user). As a start I would correct a major misconception that I have come across, the images that you upload are still yours, in fact the Terms of Service clearly state:

Instagram does not claim ownership over any content that you post on or through the Service.

This unfortunately is not how some ‘commentators’ have portrayed the situation and I have seen comments stating that Instagram is ‘stealing’users images or simply that Instagram will ‘own’ a users images. This is a nonsense – users retain ownership of their images. However if one carries on through the Terms of Service (accessible here) some more interesting provisions come to light, firstly:

you hereby grant 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.

Basically then Instagram can use, or transfer/sub-license the use of,  your images, without payment, throughout the world, but subject to any restrictions you make pursuant to Instagram’s Privacy Policy.

This isn’t however noticeably different from the existing terms which state:

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.

The eagle (or should it be ‘legal’) eyed will notice two things: 1) the licence itself was non-transferable (and also not sub-licensable); and 2) private images could not be distributed outside of Instagram. It is this first point that represents the only tangible difference between these clauses i.e. Instagram will, from 16 January 2013, be able to licence third parties to use your images, to the extent that they are not private. The second point is, in reality, covered within the Privacy Policy and should you wish to keep your images private then you can still do so. On a more general right Instagram actually need a clause such as this in order to be able to provide the service they do, their service involves manipulating your images and allowing you to share them. Without a licence to use the image they would likely be infringing your copyright through simply providing the very service you require.

The Terms of Service go on to say:

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.

Looking at the current Terms of Service the equivalent clause would be:

Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

These clauses are certainly different, however after significant backlash, and the slightly surprising acknowledgment that “legal documents are easy to misinterpret” (which, particularly for a consumer facing business such as Instagram, is simply not a suitable justification) Instagram has explained that the terms will be re-drafted.

My take on these clauses is actually very different from the general consensus, to me it seems that the purpose of these clauses is to allow advertisers to target a user (in a similar way to the use of cookies on many other sites) based upon the images that they have uploaded and to utilise a user’s images in adverts targeted to, and displayed to, that user – for example displaying an image you have uploaded super-imposed on to a beach in Hawaii as part of an advertisement for a travel agent etc.

It will certainly be interesting to see how Instagram change the incoming Terms of Service but in the meantime the whole saga has been illustrative of just how powerful the internet, used as a medium for consumer back-lash, can be. Whilst much of the media reporting on the story has been pretty far off the mark in terms of the true effect of the clauses, and in actual fact these clauses are not so very different from their predecessors, they are still drafted in such a way as to potentially allow Instagram somewhat wide-ranging rights over a user’s images.

The real moral of the story is (and this applies to any content you place online) if you don’t want your images to get out then don’t put them online.

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One response to “The truth about Instagram

  1. Pingback: Facebook’s Proposed Amended Sponsored Settlement and Instagram’s TOS Revs « Eric Goldman·

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