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Comment by declan | Hacker News Reader

Agreed with aptwebapps. The old TOU, as you correctly say, is pretty standard. Twitter's is similar, and any company with decent lawyers is going to protect themselves with similar wording.

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.

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The phrase "limited license" is gone. It's been replaced with the phrase "transferable, sub-licensable" license.

-- Material Adverse Change. For the consumer.

It really doesn't seem like a material change to me. Again, IANAL, so if there is some reason to believe these things would be disallowed under the old TOS, I'd like to know, but it sounds fairly straightforward. While Instagram may have had a more difficult case under the old TOS, and may have had to be more careful about the dispensation rather than just doing a blatant "stock photo"-type interface, I could definitely see an attempt at the argument that representation in "any media formats through any media channels" covers Instagram in most cases of what would be considered "transferred sub-licensing".

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.

You granted Instagram a license. Under the old ToS, an entity that wasn't Instagram, say a nightclub, couldn't use your pictures on their own promotional materials, advetising, or site without obtaining a separate license from you, period. This changed.

Right, I'm aware "that changed". I'm not sure that "an entity that wasn't Instagram, say a nightclub, couldn't use your pictures on their own promotional materials, advetising, or site without obtaining a separate license from you" is really true, though. If a night club was working in clear collaboration with Instagram and published your photos on its promotional materials, that would seem to be covered by Instagram's license to replicate your content in "any media formats through any media channels", as Instagram exercised their license to place it there.

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.

There is a difference between a contract that "Joe can use this" and one that says "Joe can let anyone use it". Sure, if Mary uses it Joe can say "She's just using it for me", but UNLIKE code, the law is not completely decimated by a single loophole. Judges and juries can see through blatant abuses and rule that the contract did not cover that use. ("Can", not "will", but even the chance is enough: a 1% chance of losing a 100-million dollar class-action lawsuit is a million dollar cost, plus legal fees.)

Judges and juries can see through blatant abuses and rule that the contract did not cover that use.

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.

It would seem that the key difference is in the first example Instagram has to be involved in the nightclub venture. Which is all fine and dandy for an Instagram themed nightclub or nightclub event. Now however, and this is the kicker, Instagram can let as many nightclubs as they want use the photos without Instagram having to be involved or even disclose their involvement with anyone.

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.

> Just thinking out loud here, move along.

By "thinking out loud" you're begging people to not move along, much like the guy holding forth in Times Square.

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