Tuesday, December 18, 2012

Instagram clarifies new ToS: Can't sell your photos, doesn't own them, but does have a license for them

A change to the Instagram Terms of Service on Monday brought forth a great deal of concern. The furor arose to such a point that co-founder Kevin Systrom felt it necessary to write a blog post, explaining that the company's new ToS was misleadingly worded, and that clarifications and changes would be coming.

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The move followed uproar over the possibility that Instagram had the right to sell user photos. The concern was such that some celebrities, who have taken quite well to Instagram, said they would or might be leaving. That included Seth Green, Anderson Cooper, Mia Farrow and more.

Here's what caused the ruckus:
[Y]ou 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. [...]

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.
Was the online photo sharing site saying it could sell user's photos? Of course it was. As some cynically said, now that Facebook owns Instagram, did you really expect anything different?

Seriously, though, the new ToS were not radically different than the earlier ones. However, they were worded in such a way that it was finally clear what Instagram could and could not do with your photos.

In his blog post, Systrom made the following points clear:

Instagram does not intend to sell user photos: “It was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. 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.” [It may not sell your photos, but that doesn't mean it can't use them.]

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Instagram does not intend to make your photos part of advertisements: “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.”

Instagram does not own your content: “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.” [Note: reading the above ToS, it's clear that you DO grant Instagram a license to use your photos. They don't own them, but they do own a license. This isn't any different from any other company that similarly stores user content, though.]

Private still means private: “Nothing has changed about the control you have over who can see your photos. If you set your photos to private, Instagram only shares your photos with the people you’ve approved to follow you.” [The default is public.]

Instagram's big mistake was not clarifying the ToS changes from the start. End users also made a mistake by assuming that Instagram did not have a license for their content -- as noted above it's basically de rigueur.

However, it's also true that folks distrust Facebook, which now owns Instagram. After all, Facebook has made many privacy FUBARs and other SNAFUs in the past. Why would an end user think it's big acquisition Instagram would be any different.

Changes to the ToS are supposed to take place on Jan. 16.

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