Instagram says it now has the right to sell your photos
news.cnet.com
news.cnet.com
There is zero content discoveries features, so you have no way to get new followers or find new people to follow. And the top posters are all teenage pop stars that I've never even heard about who post completely uninteresting photos.
The more Instagram turns into Facebook, the more this opens up a spot for another company to build an actual social network around photos. Whether this will be 500px, Flickr (again), or somebody else entirely, I don't know.
Mark Zuckerberg is in a horrible position. I bet he would love to just build a cool and useful product. Instead he is damned to roll out all these awful money making features. And quick. Not only for his investors but also for the staff that owns FB stock.
How smooth could FB move along if their investors trusted them like they trust Jeff Bezos and his very long-term view.
I think facebook could make quite a bit of money if they charged for their developer API.
Not attacking. Just wanted to hear more specific thoughts.
I never looked at it that way. Great thought.
Look what Bezos had to go through to get where he is today: http://i.imgur.com/2ie9t.png
Earlier this year while I was staying in Ginza for the weekend a spring popped inside one of my lenses. I have some experience repairing and rebuilding mechanical SLRs (not so much lenses) but without any tools or parts I was hoping to find a repair shop nearby that wouldn't break the bank. Ended up finding a pic on Flickr from someone who had the same issue a few years ago of him and the repairman with his Victor Hasselblad diploma, and his business card. Totally random place on the 8th floor in San-chome, but he was a great guy who I never would've met if not for that post.
The dozens of Flickr downloader apps, and countless free scripts on GitHub, let you not only download them all for backup, but often will keep them in sync with folders. Even iPhoto has this sync built in.
> lockout of your own photos when your pro membership expires (combined with the aforementioned non-feature), and some other things.
They notify you before it expires, and said tools take not long at all.
What's more, their policy is incredibly generous: they retain all the photos for you, and when you re-up, everything's back as it was. That's extraordinary customer service.
The only difference is that your photostream is limited to 200 photos. Every other way that photos are accessed continues to work - whether you've embedded them on blogs, other people favorited them, etc.
There are 3rd party tools to export your photos from Flickr via the API. Flickr hasn't written their own exporter (they probably should) but exporting apps aren't blocked.
Instagram has had an Explore view for a while now.
>And the top posters are all teenage pop stars that I've never even heard about who post completely uninteresting photos.
To be honest, I look at a lot of Instagram data because I work on a photo sharing startup that uses their API extensively, and the network as a whole is completely dominated by teen girls vying for each other's attention. The amount of content they create and consume is mind numbing.
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.
Yes, that's in the old TOS, and it's pretty much boilerplate for any site with user-generated content. That language certainly seems to me like it would cover uses in advertising or even Instagram reselling your images as a "stock photo" site. This kind of clause is required so that users can't attempt to entrap the service provider by uploading content and then claiming that Instagram didn't have a license to utilize it and therefore had violated copyright, and also probably as a fallback policy in case a cranky user spotted their image in a stream or feed or video or something (or, alternately, that the server is hacked and db is leaked, and thousands of claims of "unauthorized use" come flooding in).
IANAL but pretty much this is a non-story. They've simply decided to specifically inform you that a license to " 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" includes use in advertisement, as one would reasonably believe it does.
The new TOU, however, heads in a different direction. The phrase "limited license" is gone. It's been replaced with the phrase "transferable, sub-licensable" license. Also new is "a business or other entity may pay us to display your... photos... in connection with paid or sponsored content or promotions, without any compensation to you."
Transferable is a very important word. So is sub-licensable. Those were NOT in the old terms of use.
-- Material Adverse Change. For the consumer.
The clarifications, of course, are intended to clarify the consent they're taking. I'd be interested to know their motives for this; as I speculated in the parent, does a new law take effect in an important market with regard to advertising? Are they just trying to play it safe? Are they going to make aggressive moves into this kind of space (reselling user photos, using users' profiles without consent in advertisements) and wanted to ensure that they didn't have to deal with any lawsuits upon launch?
I will agree that the new TOS allows them to use your profile and likeness as they see fit, which based on my simple layman's reading, isn't included in the old TOS.
Just thinking out loud here, move along.
As I said, they'd probably have difficulty operating as a blatant competitor to iStockPhoto, but I think if they'd structured things with a modicum of cleverness, their old ToS would allow them to get away with most of what's explicitly covered in the new ToS.
I've seen this observation mentioned a few times on HN and it seems quite right. The letter of the law may say this or that, but ultimately it comes down to some form of the giggle test. You have to imagine a judge saying, "You didn't really think that's what the law|contract meant, did you?"
For example, people trying to avoid penalties for unauthorized distribution of copyrighted material by claiming they own the copyright on certain large integers or are merely passing _numbers_ around, not movies or songs.
With the boilerplate TOS there may be all sorts of things that one could imagine are allowed but I'm pretty sure Instagram's (i.e. Facebook's) lawyers thought that the original phrasing would not be sufficient to clearly allow them to do what they wanted to do, so it was changed.
TLDR - Before: Instagram had to have clear collaboration.(which would limit how many people they could sale your photos to.) After: Instagram does not have to show clear collaboration.
By "thinking out loud" you're begging people to not move along, much like the guy holding forth in Times Square.
These new TOS however - absolutely appalling. In the past year we've seen professionals flock to instagram to help promote their craft - with the new language I'd imagine you'll see a mass exodus from those folks pretty quickly.
I'm shocked, shocked to find out that Instagram plans to monetize their service via advertising.
Zuck: People Just Submitted it...
Zuck: They "trust me"
Zuck: Dumb Fucks
See a pattern here?
You are correct that the old TOS seems pretty standard, but these changes are not trivial.
Seems like it hasn't been updated in a while though...
When presented with a new T&C's policy, shouldn't you explicitly be asked to agree to any changes from the previous one you agreed to rather than be presented with the entire 14 pages which approximately 0.00001% of people will ever read before agreeing to?
(And please don't say you read every EULA you encounter in full)
In general: people who don't take the time to read or consider their Terms of Service are not going to take the time to read or consider the changes.
this is just an anguished news writer probably snubbed by Facebook...
Not being able to opt out, and changing the system wholesale overnight like this, is deeply unethical.
On the scale of things they could do that would make this better:
* Best case: opt-in only, compensate users whose photos they use.
* Present a choice to users when they sign up, default to opt-out.
* At least present a choice to existing users whether they want this or not, and allow them to continued access to the service either way.
* Notify users and only change the rights when any new photos uploaded, and keep existing photos under the old terms.
* Give existing users the opportunity to deactivate/delete their account if they don't agree, and a chance to download their photos. Or "freeze" existing accounts until they acknowledge the changes, rather than automatically assuming consent.
They seem to have picked the absolute worst option available to them, and it's troubling to say the least.
Instagram needs to get money from somewhere, and as far as I'm concerned selling my photos is preferable to filling the feeds with ads. However I can see how for a lot of people they'd rather have ads then have their photos sold (especially pro photographers) so it'll be interesting to see how many users they loose over this.
Also it goes with out saying that if they do put adverts in, I'm out.
And since it's not worth the hassle of constantly being mindful of what I'm uploading, I'm going to delete my account. Which is a pity, since Instagram's photo app seems to do a lot of nice automatic color balancing compared to the native Android app. :(
But there's a difference between telling users clearly this is what you're doing, and putting it in the headline of a blog post, vs. inserting this language into the middle of a terms of use agreement. I don't think anyone here begrudges Instagram making money. But being upfront with the users who just made the founders $1B (well, maybe $700M) is something that's not unreasonable to expect.
Legally, they will be in deep trouble the first time they sell any pictures with people in them because none‡ of them will have signed a model release.
I'm not OK with giving them resale rights to my pictures.
‡ A tiny fraction of a tiny fraction will have, but that release will be with the photographer. Tracking that down will be their responsibility.
I know several professional photographers who use Instagram regularly (and are worth following). I suspect this will not sit well with some of them. I'm especially curious if Instagram will let people leave and remove their old photos easily.
Some of them also post professional images they've imported from their computer (not just phone images).
For example, here's an image taken by Jose Villa (high-end wedding photographer) for Williams Sonoma's gift registry: http://instagram.com/p/STxUVcrodv/
What's gonna happen when IG sells ads with those kind of images?
Like any social network, what you see is dependent on who you are and how you use the service. Instagram is much more wide open than G+ as well, people are much more likely to share content to only a few people on G+ and thus you'll never see that content (or any replies). From what I've heard from photographers, G+ is definitely an active place to share photos.
You're also not accounting for the fact that Instagram is a mobile app with a single focus. I don't want to go into my G+ app and filter by photos and hope to get the same quickly-see-what-my-friends-are-up-to experience I can with Instagram, just like I wouldn't post those kinds of photos to G+ to begin with. It's a very informal platform and I don't think G+ comes close to replicating that experience.
And, for the record, he still shoots film (not a DSLR) :)
The technology of each is basically irrelevant if there is an attractive audience, as all of us participating on this site clearly demonstrates.
after deleting one of my accounts, I was suspicious that they would still keep the photographs.
So to test this, I made a dummy account named after where i live; nikkojapan http://instagram.com/nikkojapan/
i made a quick pointless photograph just to upload http://instagram.com/p/K8bx_ZB59K/
Here is the link that still exists to the photograph of an account that was deleted right after the Facebook acquisition announcement. http://distilleryimage6.instagram.com/6d96aaa0a45611e1a9f712...
Hopefully it just takes a little time when deleting the account to go through and delete the individual photos, but I'll be deleting the individual photos before I delete my account to be safe.
Also, I forgot to include the screenshot of the photograph being hosted on the dummy account just before I deleted it and the account; http://spacestation.co/I1ry
It says that "a business or other entity may pay us to display your... photos... in connection with paid or sponsored content or promotions, without any compensation to you."
I read this as intended to say "when we display your photos (as part of our own service), we may serve up ads to be displayed next to them and not give you a cut of the proceeds".
I don't mean to argue that the language can't be interpreted to let FB sell the pictures but it doesn't look to me as intended for that purpose.
In any case, the usual scenario of virtualized user outrage will be followed by backpedaling by Instagram. 2% of the user base will vow to never use the servie again, and then all will go on as before.
And since when is "intent" ever part of US law (especially with regards to IP)...
I was quite explicit that I was giving my read of the intent, not my assessment of what Instagram could legally get away with. The transferability clause does not change my reading of the intent.
"To be clear, it is not our intention to sell your photos," he said.
http://gadgets.ndtv.com/apps/news/facebook-responds-to-anger...
To value Instagram at a billion dollars (well less now I guess because of Facebook's share price) is insane. They have a serious problem with spam - every photo I upload is liked by many getM0refollowers<RandomNumber> and every photo I upload is bombarded with spam comments. They seem incapable of getting a grip on this problem.
The app also has bugs e.g. it says I have X followed but then displays X minus Y when I try to view who they are.
Its popular photos are rubbish - so there is no way to discover interesting photos other than searching for tags you're interested in. Photos with a 1000 likes appeal to the teenage market only i.e. they're not serious photos.
When you follow someone you get very large photos dominating your stream, so I don't follow many people because of this.
I really hope flickr aggresively try and take back this market. Instagram is a neat idea, but has very poor execution.
Although we know now that Twitter is choosing to become a walled garden with a very limited kind of service, a year ago it seemed possible for them to become a sort of internet infrastructure.
Seriously, if you don't want to be the product, organize those photos in a standard directory structure and synchronize it either with Dropbox or Google Drive or SkyDrive.
The downside of doing that is that storage is more expensive, but that's closer to the real price the service is worth and so that makes it sustainable. Also, migrating between cloud storage solutions is much easier.
Shameless plug - try Dropbox by clicking the following link, and we'll both get a small bonus: http://db.tt/x1XoSUnE
Actually, yes. Hard drive space is incredibly cheap, especially at their scale. My photos aren't terribly popular, so they aren't using much bandwidth either. I probably cost them $5-10/year, tops. In fact, I'm probably one of the majority, the ones who subsidize the heavy, uber-popular users with tens of thousands of followers who upload hundreds of photos a year.
Actually, no it isn't and at scale it makes it even more expensive, because you need redundancy. We are talking about RAID and CDN, not to mention that at scale hardware breaks a lot more often.
What actually makes it palatable for businesses such as Yahoo or Google is that many people pay for this storage without using it, while heavy users that share a lot help by marketing the product through their sharing to others.
On the other hand I've got 50 GB worth of data uploaded on Flickr. You can't tell me that 50 GB of redundant on-demand storage is worth $25 / year, unless you live in some kind of fairy land. I also have only a couple of photos shared. So what value does Flickr get from me?
That's related to reliability not scaling per see. Building a highly reliable system is far cheaper when you reach the scale of Google or Amazon because you can rationalize purchase. Actually, I bet price of hardware can totally be neglected next to admin and bandwidth cost.
> On the other hand I've got 50 GB worth of data uploaded on Flickr. You can't tell me that 50 GB of redundant on-demand storage is worth $25 / year, unless you live in some kind of fairy land.
I must live in fairy land. :-) You can buy 4 decent 1TB for 400$ that will allow you to cater for 20 users at 20$ per user. Conservatively you can expect them to live 3 years on average which brings the cost to 7$ per user per year. Add a 400$ server good enough to do software RAID. Let's say 5 years of life expectancy it adds 5$. It's 12$ per user plus network cost on a lan.
Flickr uses better material and pay bandwidth and admin. But they have economy of scale and can put far more than 20 50GB users on 1TB on average because a lot of them don't use them fully. I think they are above break even point at 25$/year.
It's probably past break-even point, but it's not too profitable for Yahoo. If it were, then Yahoo wouldn't let it stagnate for so long (although it could be argued that Flickr has immense potential and Yahoo failed to see it).
And that's why I said users are still the product. At scale, products have to go way beyond break even point, otherwise it's a drain of resources.
Even if that is the case, you're welcome! I'm subsidizing your account. :)
Oh, absolutely. I store a backup copy of my entire Flickr library for something like $5/year on Amazon S3, and the service hasn't exactly had insane development costs the past few years - design and feature set have stayed pretty steady.
The result is something like 50 GB of photos, which isn't so cheap to backup on Amazon S3.
But on the other hand, we are talking about photos for which we need backups, because digital storage is incredibly unreliable and I want to show those photos to my grandchildren someday.
Even the most prolific folks on my feed curate their 1,000 photo sessions into a hundred or so. I suspect you're something of an edge case.
I was just saying though ... if you need to store your photos somewhere where they are readily available, choose general-purpose cloud storage, not Flickr, not Google+ or Picasa, or whatever else "photo sharing" service exists out there.
Leave Flickr and the likes of that for a "curated" photo stream of carefully chosen photos that you want to publish to the whole world and never trust their privacy settings.
No, the downside is that there are zero social features when you put your photos on Dropbox. Flickr is better, but still not anywhere near Instagram.
That is WAY more than they need to cover expenses. Storing and serving static content is very cheap.
Buh bye Instagram. Hope that ad thing works out for you. (Not.)
* [Instagram's suicide note](http://news.ycombinator.com/item?id=4934271)
* [Instagram Will Share User Data With Facebook According To Its New Privacy Policy](http://news.ycombinator.com/item?id=4932765)
The last one may be more interesting than the usage rights for photos.
"All in all, I think it is a mistake to defend people's rights with one hand tied behind our backs, using nothing except the individual option to say no to a deal. We should use democracy to organize and together impose limits on what the rich can do to the rest of us. That's what democracy was invented for!"
I found Roger Martin's book "Fixing the Game" to descibe interesting case studies and proposals on how to fix the short-term greed problem. Perhaps Instagram's board should read it?
For such simple services, reputation is all there is. Building next photo sharing service is easy (perhaps already free on github?) and competitors are waiting for Instagram's slippage.
The impulsivity caused by dopamine deficiency also causes more unwanted pregnancies - another risk factor for criminality.
Poor people are also more likely to be religious - http://www.gallup.com/poll/116449/religion-provides-emotiona... and being religious is correlated with criminality.
So there is clearly a strong correlation between the effects of being poor or in poverty and criminality. Since the law is specifically designed to 'deal' with criminality, it is a mechanism which is quite biased against the poor. Hence, the law is there to protect the rich from the poor.
Translation: You accept that we may try to trick you.
I'm an intellectual property lawyer and I think the intent behind the above language is quite clear. It is not aimed at alleviating an undue burden of identifying commercial content (as Instagram might suggest), it's about reducing transparency to allow for marketing tactics that would not likely be viewed favorably if they were obvious to the user. While under no legal obligation to do so, Google has been identifying sponsored content for over a decade. If we were to begin by looking at "standard practice" then we might start there.
I think it's great that people are reading TOS from web companies and making their concerns known. We might call this negotiation. If you accept that idea, then I think users are in an excellent bargaining position. They can walk away at any time. They can adapt and they can find new alternatives. These companies however may not be able to find new audiences so easily. I believe they will take the feedback very seriously and respond, with new language if necessary.
I'm noticing some of my friends on Facebook who were using it extensively for one purpose or another are now closing their accounts. Other friends of mine cannot use Facebook because of their employers. It seems clear to me there are both costs and benefits to using Facebook or Instagram and that sometimes the costs may outweigh the benefits.
Keep reading TOS. It is good for the web.
I'm surprised Facebook is moving so quickly to try and monetize Instagram. I wonder if they're using it for experimentation of what their user base will accept. Regardless, I think this is probably a step too far in the wrong direction.
Will Facebook and Instagram be able to clamp down on users with the right acrobatics to keep their userbase and increase their ARPU? Either way, these seem like shady tactics.
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.
Furthermore under Section 106: Exclusive rights in copyrighted works aka. 17 U.S.C. § 106[2] Instagram cannot sell your photos and it cannot use your photos and alter them in any meaningful way.
Having said that Instagram could have communicated this better as this hasn't helped the situation either.
[1] http://instagram.com/about/legal/terms/updated/
[2] http://www.copyright.gov/title17/92chap1.html
====
NOTE: Also posted this at: http://news.ycombinator.com/item?id=4939663
Coupled with the other big mistake of separating themselves from Twitter, I'd say Instagram is well on their way of becoming the next MySpace.
That being said, said celebrities, professionals and popular persons also agreed to the same TOS...
The question is, what do they actually want to accomplish by floating this trial balloon?
http://www.panoramio.com/api/widget/api.html
http://www.panoramio.com/api/widget/api.html#conditions-of-u...
On the other hand, photos are much more personal: they're works of art, at their own level.
So I think whether you care or not depends not only on your stance regarding privacy and all that, but also how you frame your use of Instagram: is it a way to post status updates disguised as photos, or photos disguised as status updates?
I think this is the major issue that will define the internet landscape in the long term. People indeed got trained not to care about privacy and just like with "war on terror", they gradually give up their rights and freedom for the sake of "security" and "better user experience".
Soon enough anyone who speaks out of user rights or privacy will be seen as a mad man akin to RMS these days. 10 years back, a site, which required a scan of your government issued ID in order to change your name would be deemed insane. Now it's a common practice.
Welcome to the Matrix, gentlemen.
I believe they may have just wanted to spare themselves the headache of a money system and of people who would reupload other people's pictures or copyrighted works for their own profit.
We wanted to move ours, so we built this handy thing and decided to release it. Let us know if you run into any issues.
Nick Tran, social media lead for Taco Bell talks a bit about the campaign in the below article: "http://www.mobilemarketer.com/cms/news/content/13959.html
According to Wikipedia[1]:
"Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph."
1) Usually it does not make sense to sue amateur photographer.
2) It may make sense to sue Instagram and their clients, especially when serious money are involved.
IANAL
http://www.apug.org/forums/forum137/82809-legalities-relatin...
After 20 minutes of searching with Google and reading on about 10 websites I couldn't find any photog sites that even reference the law ...
(Put another way: the right of publicity will limit commercial use of Instagram photos, at least in the states that recognize it. But TMZ is editorial use, not commercial use.)
Granted, I'm not an Instagram user so I could be entirely wrong but the network effects of Instagram don't seem to be strong enough to push their users around too much.
It's far more likely to be something less damaging but more obvious to users, like in-feed advertising.
Worse, I feel that FB/Instagram will backtrack from this, and nearly everyone will forgive them. Not me. They have shown their true colors. I'm out. I won't let them sell me down the river.
Classic negotiating tactic - ask for WAY too much, then backtrack a bit, and you get more than people would have possibly let you have, had you asked only for that in the first place.
It's one thing if instagram uses a picture of you for advertising purposes, since you have agreed to their ToS. However, how do they know which pictures are of you and which are of other people? They shouldn't have any legal right to use pictures of other people for advertising purposes, as far as I understand, because there is no contract involved.
Not at all. When you upload your photos to Instagram, you grant them a non-exclusive license to use them in accordance with their TOS. Licensing them under CC is just issuing another non-exclusive license to another party.
http://www.forbes.com/sites/limyunghui/2012/12/18/export-ins...
In my opinion, the decline starts now...
http://statspotting.com/2012/12/instagrams-policy-changes-is...
500 Internal Server Error
nginx/0.7.67
Same thing with selling people's personal pics as stock photos, it doesn't matter what the user agreement says, that ain't gonna fly in front of a judge.
It would be like putting a sticker on the back of a picture frame that says whatever you put in here now belongs to Frames incorporated, NAL but it seems to me however legally binding it claims to be it wouldn't pass the smell test in court.
This change means that Instagram could license photos published through their service to you without compensating the photographer. You always have the option of licensing the photos directly from the photographer, in which case Instagram isn't involved at all.
Unless you live under a rock, you know that many "Instagram girls" sell their posts to clothing stores to promote them, it's actually hugely successful!
"Awesome glasses I got them from example.com use code EXAMPLE50 for %50 off on all their inventory"
I wonder if that's still legal. Or maybe Instagram can automate that!
There is no other working model, btw.