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Comment by cookiecaper | Hacker News Reader

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.

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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.

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