Wil Wheaton on Instagram's new ad policy
plus.google.com
plus.google.com
Axiom 2: Company does not charge you for this service
Axiom 3: Company has no other visible means of income
Axiom 4: Company has non-trivial operating expenses
Given that this covers a huge amount of "our digital life", there are a few possible solutions:
- Keep getting services without paying money but paying with privacy
- Identify another way to get the services we rely on to be paid for
- Hope that a large benefactor company will buy the services we use and write the operational cost off out of the goodness of their hearts
Especially in light of the fact that the data is essentially unprotectable. It is not often observed that "DRM in general is impossible" doesn't just apply to media conglomerates, but to people as well; there's no way to DRM your phone number or address, either. So that's pretty much out. What's next?
EU law deals with it. It's illegal (and has been for decades) to store personal information about someone unless you have a legitimate, proportionate reasons etc. etc.
The far bigger issue here is that services like Instagram can take and use your data without your consent indirectly. If I give your photo or your phone number or your location to some service and that action brings you harm, who's to blame and whom can you sue?
I'm not a lawyer, but I bet it's not going to be Instagram or Facebook or the other offenders out there ;-) And DRM here is meaningless.
DRM would, hypothetically, solve the problem of giving your phone number to somebody but not allowing them to share it further without your consent. Except, of course, it doesn't.
By the way, because after years on the net I can see this coming from miles away, let me draw a distinction in advance between "I personally don't care about my number being shared without my knowledge out of other people's contact book to arbitrary third parties", and "I don't think anybody else should ever care about having their number shared out of somebody else's contact list with arbitrary other third parties." They aren't the same thing, and if you want to argue the latter point, that can be done without trying to argue that there isn't any consent issue at all, which is simply false. Whether you consider it right or wrong, some things are happening that some people don't want to occur.
This is not true.
There are plenty of other ways for social sites to make money. If Twitter is doing billions off promoted Tweets, then surely a company like Facebook which has even more data on you can make a similar amount selling standard targeted advertising.
What we are seeing here is crossing the line. The worst thing is, this data was acquired under completely different terms and conditions. I never agreed to this when I signed up, and there is the faint scent of bullshit now that the company is trying to turn around years after that fact and retrospectively acquire my data. 'Opt out by deleting' doesn't cut it - we had a contract!
First they get popular, then when they're big enough having the luxury of lock-in, they turn to fucking the same users that made them popular.
Web 2.0 - taking the milk out of stupid cows that should have known better.
On the other hand, we've all now all got always-on always-connected computers in our pockets that already have more computing power than typical web servers a decade ago, so maybe somebody will write some software and that whole personal server thing will finally take off soon.
Right, but terms need to be agreed upon by both parties. They can change the terms all they want but that doesn't mean that I have to abide by them if they don't ask for another agreement. The simple solution is to provide another agreement and make me agree again. If I don't agree, then the service is cancelled and we both go on our merry way.
Do you have to click an "I agree" for the new terms? Do they have to notify you or can they just change them and everyone has silently agreed to the changes?
I've seen all of the above and have never been clear on the current legal precedents on this.
I have certainly read plenty of lawyer opinions that it's blatantly invalid to have "this contract can change at any time with no notice" clauses in a contract but I'm not sure what precedent is out there.
Wil's entire point stemmed from the involuntary nature inherent in much of public photography today. There's a reason that TV shows blur out the faces of people who don't sign commercial usage waivers.
So no, this does not exactly compare with facebook.
Gets a little dicey when your image is used in a way that could be viewed as you endorsing something, like an ad or a service. For that I use a pretty blanket model release form, but it's a grey area. Unless you are rich and famous. They have their own set of rules.
If I take your photograph and you cannot be identified in it, I can publish it without your permission, (say in a crowd or in front of a building as you note, etc)
I can share pictures (Group MMS & Shared Photostreams) and find out what people are doing (texting, phone calls & email) without giving up that information.
It's not surprising people are upset when the mass trial period ends and there are no competitors left to move to.
Axiom 5: Company X's only chance of monetization is
by IPO or acquisition by Company Y.
If Company X is acquired by Company Y,
goto Axiom 1 through 5 for Company Y.
I don't know how Tumblr is doing - it seems like it's under some pressure to do a better job of monetization - but there's been this idea of a bubble in social media for years, and it we are beginning realize that in some way we were right. It's just that we didn't consider that companies would pursue the sinister solutions to their fiscal quandaries.
Makes you wonder how this makes the investors look.
But if you're going to change the rules once you have millions of users, a prominent notification as opposed to inserting language into the middle of a terms of use policy would seem to make sense. I think Instagram users would be much more willing to listen if the reason and justification for this policy shift were clearly explained and users clearly notified.
Also: "axiom"? How about "fact"?
Which leaves you with a pay-only service, competing with a free-only service that consequently has ten times as many users (and therefore much stronger network effects), and the pay service goes out of business.
The true problem with all of this is that we're using services for things we should be using products for. You want to share photos with friends? We could do that in 1999 with AOL Instant Messenger. But now Facebook and Instagram have a better UX -- and it has nothing to do with whether they're services.
What we need is an open source P2P Instagram. No ads, no paying anybody anything, just photo sharing.
So charge more. Instagram et al are trying to make money, not serve advertisers. If privacy-conscious people are willing to pay more than advertisers that's great.
The trouble is that the users (including the privacy conscious users) have to go where their friends are to interact with their friends. And the majority of users are not willing to pay money for more privacy, so the advertising-funded service gets the majority of the users, and the privacy conscious users can then either give up their privacy or lose the ability to interact with their not so privacy conscious friends. And they choose the first option in droves (or there just aren't enough privacy conscious people left), so there is no real market for the alternative.
I mean think about it: It's not like offering a paid service is rocket science. If there was money to be made there, why isn't anyone making a billion dollars offering it? Why aren't you?
Maybe it's an untapped market and no one else has had the vision to serve it. But this is kind of one of those money where your mouth is situations. If you think that market is lucrative enough to be worth chasing, do it. If not, well, apparently no one else does either, so here we are.
I don't understand why companies like this don't just offer an ad-free pay option with a stronger privacy policy as an alternative to their free option and make everyone happy, except the total freeloaders who want free and their privacy protected. Seems to work fine for Flickr.
Actual numbers - 4.64B revenue. 400M profit. http://finance.yahoo.com/q/ks?s=FB
Mobile terms of service
By tapping 'Accept', you agree that Google will use your location in this product and accept the Mobile Terms of Service.
You need to join g+ only to reply to the post, but didn't I need to join HN to reply to your post?
11.2 you agree that this license includes a right for google to make such content available to other companies, organizations or individuals with whom google has relationships for the provision of syndicated services, and to use such content in connection with the provision of those services.
11.3 you understand that google, in performing the required technical steps to provide the services to our users, may (a) transmit or distribute your content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services or media. you agree that this license shall permit google to take these actions.
When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.
IANAL, but I don't think that includes a right to sell (sub-license) your content.
Google's current privacy policy includes the statement:
"We believe personal information should not be held hostage and we are committed to building products that let users export their personal information to other services. We don’t sell users’ personal information."
In most states (perhaps all), it is illegal to use someone's likeness for advertising without their consent. This is regardless of their status as a celebrity or not.
This is why photographers who think their photos might be used commercially should get model releases from any identifiable persons in their photos. They should also give copies of those releases to any company that wants to use the photo commercially, so that company can defend themselves if the model tries to sue.
The Photo Attorney blog has a more detailed article about it: http://www.photoattorney.com/2009/05/when-you-definitely-nee...
It's not all states, and it's not entirely clear cut in many states (it depends on how the likeness is used), and their TOS does give permission to use your likeness (which means that if the person in the photo is also an Instagram user, they have a tougher case).
But Instagram would certainly be playing with fire if they tried that with a celebrity, and I don't think they would. It's your ordinary folks who can't afford to lawyer up against a huge corporation that are more likely to be affected by this.
However Will's point is that Instagram's new agreement may compromise a user's ability to manage their personal brand, because their photos are no longer their own. If I'm Will Wheaton and I post a photo of myself having a good time at Disney Land, I don't want Disney Land taking that photo and using it in their ads. Since it's a photo of myself the photo release issue isn't the problem, since I've forfeited that right to sue by agreeing to Instagram's new agreement.
If enough celebrities used Instagram, and Instagram could figure out their accounts, they could open autopaparazzi.com.
Presumably it will be in violation of Instagram's TOS to post the kind of pic that he talks about. (See Rights 4.(ii) )
But as he alludes to, it should make it interesting when someone does.
If I see an ad about (insert product name) in my (insert Google product) stream, it is something that only I can see. If you see a picture of me (perhaps uploaded by a "friend" to a site like instagram) used to advertised products to you, then my privacy has been severely breached.
You should only be afraid of services that have to apparent revenue model, because you've got no idea what they're doing with your data. When the use of your data is clear and well known, you can make an informed decision on whether or not to use the service.
I believe where users draw the line is when a service uses their content to distribute to others for a fee. Using images, essentially intellectual property, is not OK with me. Nor am I a fan of Facebook using my name in sponsored likes. The later bothers me less, but it still annoys me that it is happening. Part of this is the fact that when you first logged on to facebook, you viewed it as a way to share in a fairly private network with your friends. Now your habits must change to protect yourself, but you have no alternative (yet).
I don’t have an answer to the problem with how free networks should grow, but personally, I am opposed to any use of my content as a distribution or free use of images. Now I feel that I have to protect myself by not posting photos to facebook in case they one day change their policy.
Sounds like the EU's Data Protection law. Making it illegal to store personal information about people unless they have opted in, etc.
The question of whether they can use someone's likeness is an interesting one, and the answer to that apparently varies from state to state. Instagram could probably get you to sign away the right to use your own likeness in their ads, but that wouldn't apply to people who don't use their service.
I'm not sure how jurisdictions of other states apply (any actual lawyers want to weigh in?) but Instagram is based in California where (if you can believe it), publicity rights are quite strong (even dead celebrities get protection there). There's a little gray area that Instagram could exploit there, but I think the example Wheaton described there would be a pretty easy meal for Rauch's lawyers. At the very least, Instagram's legal team would almost certainly say "fuck no" if the marketing department showed them an ad like that without getting permission to use her likeness.
Specifically, how is his example of a celebrity's silly picture being used by Instagram to advertise a silly product plain wrong ?
I also fail to see how he comes across as entitled in his post. He's merely expressing a concern, one that, at face value, seems to be pretty valid.
To me is seems like the ads are going to be more along the lines of promoted restaurants and/or venues using photos the people you follow have taken. IG basically knows where everyone goes based on people voluntarily tagging images, and can now serve ads based on that in the same way FB serves ads from pages you like.
An ad that says, 'Your friend recently went to X (with a photo they took at said venue)', is a pretty engaging advertisement in my mind.
To the contrary, I thought the theme of his post was specifically that he didn't know how Instagram's new policies would effect personal privacy, and that lack of understanding concerns him. When pondering the implications, he even goes as far as to ask whether a worrisome, fictional scenario was even a possibility rather than insisting that it would happen.
Where do you think he expressed a sense of entitlement? He's not a user of Instagram, so I didn't get the impression that he thought Instagram owed him something.
I think his whole post is a lead in to an excellent point: in the "social web" in which we all interact daily, we are seeing more and more that you don't have to use a service in any way in order to be affected by the decisions that services make about its own users' privacy. All entitlements aside, it is becoming increasingly difficult to maintain control over your own privacy when the details of your life are extracted not as a result of your own deliberate decisions but by the decisions of others.
Opinions about whether Wil Wheaton is a self entitled geek aside, I hope we can all agree that that is a point worthy of consideration.
I've noticed ads where it says something like "your friend Dave likes Verizon", with a clear link to an ad. I then ask Dave if he recently "Liked" verizon and he says "No, but maybe a year ago or something for a contest". So they are selling our likes as endorsements to brands already.
Instagram wants to do this with photos, I expect. A photo of you driving a Prius might link to a Toyota brand page after you follow the Toyota instagram profile, for example.
== It used to be "pick your friends wisely"
But now, that's before the meaning of the term was of a different sort.
If we are interested only in the opinions of people we already know, how can a site like HN even exist?
What do you think would have been a better title for submitting this piece to HN?
I mean its not bad. I agree with your original statement that I too, don't know the majority of people who post stuff to HN in general, and I don't have issues with that. However, when someone submits a name in the title, I expect it to be a name that is relevant or something I would consider important. Names like Marc Andreesen or whoever makes a lot of sense. Wil Wheaton, not so much. Of course thats personal opinion.
That said, even with blog posts by Marc Andreesen, you don't see stuff like "<insert name>: title". That sorta irks me. Personal problem, I know.
http://en.memory-alpha.org/wiki/File:Wesley_Crusher,_2366.jp...
it's possible a more sophisticated "privacy market" could solve these issues.
> Seth Green walking through an Urban Outfitters, does that mean Urban Outfitters can take that image and use it to create an implied endorsement by Seth?
- Unless walking through an Urban Outfitters requires agreeing with TOS before entering it, the exemple is irrelevant. When you sign up for facegoogram , you basically sign a binding contract. Wether the terms are fair , or even legal or not, it is another issue.
No, they are NOT going to do that.
It's 2012. Why are people --and especially someone like Wheaton-- behaving like it's 1994 and they are learning this "web" thing for the first time?
I've seen the same bloody story play up 10 or 20 times. They made a BS change on their license terms, they are is gonna be a small fuss from their users about it and they are gonna revert it.
It's not like Instagram-the-company even intended to do that in the first place -- most likely they screwed up the phrasing but meant something extremely more limited (like: we'd have be able to use your pics when advertising Instagram-the-app itself).
Instead, people are acting like Instagram was really going to sell their photos and not pay them, and like this thing won't be revoked in less than a month.
That is absurd.
Why?
1) The backslash from the users, especially with 2-3 active competitors against the company (Twitter, which added photo filters to its app, being the latest heavyweight).
2) The lawsuits from users their photos they did attempt to sell.
3) It's not a way to make money, anyway. Instagram is not a Getty Images like company -- and limited size pictures with cliched filters is not exactly a stock image market. Getty actually partners with Flickr, which has actual photos of ALL kinds and PAYS the photographer if it uses the pictures, but it's not like anything lucrative came out of it, for either Flickr, Getty or the users.
Yes, this backlash from users is exactly what's happening. You can't simultaneously try to dissuade the backlash from happening and depend on it to prevent the undesirable events from taking place.
No, but I CAN and AM expecting people participating in the backlash:
a) NOT to behave like it's the first time they are seeing this
b) NOT to behave like this move was intended as perceived, and
c) NOT to behave like this wont be reverted pronto.
And I expect this especially from internet savvy people like Wheaton, who have seen this play out tens of times on the nets with similar licence changes...
Had Wheaton written something like "I'm sure this is another one of countless examples of ill-thought and quickly reverted license changes" I would be totally OK.
The way it is now, it's like someone writing "Oh, my god, Charlie Brown was tricked again by Lucy, I don't believe it!!!!" for paragraph after paragraph.
Not to mention that I also presented several other reasons besides the backlash why this is a non-story (for one, it's inconceivable as a business move, when a competitor, Twitter, just turned on "kill mode", second it doesn't make sense as a monetization tactic, it's not like hipster filtered photos are a stock photo favorite, or stock photography itself is a large market).
Instagram would have closed shop the very first day it actually ATTEMPTED to sell a user photo without his permission.
Plus, I addressed this very question in my reply already. Not to mention that my first comment have several ADDITIONAL reasons why this is not actually happening.
Like Facebook has been stifled by users' opinions before.
CNN and other media outlets report that Facebook reverted their TOS update and went back to using the previous one. 'The site posted a brief message on users' home pages that said it was returning to its previous "Terms of Use" policy "while we resolve the issues that people have raised."
http://tech.slashdot.org/story/09/02/18/1310239/facebook-rev...
New to the interwebs?
What "users wishes"? Some people will always complain for anything.
It only matters when large volumes of users protest. Some guy in rural Montana not liking some Facebook policy doesn't mean FB will change it.
In this case the MAJORITY of the people are using Facebook as they did before, and have no problem with any changes.
Not the same case with Instagram, where the change has to do with the core (and basically only) feature of the service, uploading your photos.
I'm a pretty firm believer in Hanlon's razor ("never attribute to malice that which is adequately explained by stupidity"), except when it comes to lawyers. They tend to put a lot of thought into what they write, and understand the ramifications of their words.
Then they should probably fire their lawyers. It's kind of what they're supposed to do for a living.
The problem would be Instragram using user pictures for third-party ads, ie. selling user pictures to ad agencies.
People all over the technology industry fall over themselves trying to predict what these companies are going to do. A lot of them fail. Changing the ToS is a big deal because its tangible and meaningful. Intent is hard to define and I don't think folks should get the habit of assuming a companies intentions.
To me, this sort of ad in the IG stream using photos my friends took at restaurants/venues, saying that 'my friend recently went to X place' seems like a pretty engaging ad that I'd like to see. I already look at my friends' photos, so having one show up again promoting a restaurant I might like to go to wouldn't a big deal to me.
But as you mentioned, I just don't know what the TOS actually allows for, so I'm only speculating.
Is it because we as geeks we haven't seen the very same thing play out several times already?
Or because people in HN genuinely believe that Instagram really INTENDED to sell people's photos without their permission or money?
HN has really hit rock bottom...