Class action lawsuit against Instagram
mashable.com
mashable.com
If you use a free service the way to seek redress unless they've already gone and used your content in a way that you disagree with (and that would definitely not be a class action suit) is to vote with your feet.
Instagram sucks, their policies suck and now that they're owned by FaceBook they suck even more. But that doesn't mean that suing them for providing a free service makes sense.
When you're a company that is visible lawsuits like these (or at least their announcements) are part and parcel of doing business in the United States. This goes so far that the CEO of a multinational that I know that has an operating arm in the United States whereas the parent company is located in Switzerland told me that they just count this as a cost of doing business in the United States.
In their case their products were simply a bit more expensive in the US because of the hostile legal climate. In the case of FaceBook it means that the legal team costs are being taken out of the shareholders pockets or that the ads are a bit more expensive than they need to be.
In the end this is a zero-sum wealth reallocation scheme with a blackmail and a lottery component thrown in.
The lawyers that take these kind of cases are the business world equivalent of ambulance chasers.
First, it's wholly incorrect to characterize this as a suit over a free service. Instagram is a for profit business and its users traded valuable personal information in return for Instagram's service.
Second, "voting with your feet" is what you do a priori. This suit involves people who already have a relationship with Instagram, have already shared their personal information, and are asserting that Instagram's new policies violate the understanding of the original transaction.
Third, yes lawsuits are a "cost of doing business" in the U.S. but comparing it to Switzerland is comparing apples and oranges. The Swiss have far more regulation and government oversight of companies than in the U.S. European countries in general set detailed standards and guidelines for consumer products and services, while the U.S. prefers to handle such things through litigation.
Nothing you wrote contradicts a single word I wrote.
Whether instagram is for profit or not has nothing to do with their agreement with their users. Copyright applies, no matter whether you upload your data to a free service or to a paid one. In the case of instagram, part of your 'payment' is that you sign away rights. If you're not comfortable with that then you should not use their service (I'm not, and I don't. Ditto FaceBook).
As far as the users are concerned instagram is a free service. If you wish to redefine the word free in creative, new and exciting ways then you'll be having a very interesting conversation, but mostly with yourself. We define words in a certain way so that we can have a meaningful conversation. Instagram is a free service by the generally accepted definition of the word free.
On their homepage they write:
"Oh yeah, did we mention it’s free?"
> Second, "voting with your feet" is what you do a priori. This suit involves people who already have a relationship with Instagram, have already shared their personal information, and are asserting that Instagram's new policies violate the understanding of the original transaction.
Yes, so they now have the option to remove their data from the service and to deny instagram the right to the use of that data. If they continue to use it (and I think that this is where there is a very subtle point of law involved, which is that you can't just retro-actively change the terms of service and claim that if people don't remove their data that they are accepting your new terms of service) then they are implicitly in agreement with the new terms. Obviously, there are some cases where this will lead to trouble:
- people won't re-read the terms past the point where they originally signed up on the off-chance that someone pulled a bait and switch (instagram specifically prompts you in their terms-of-service to review the terms periodically for changes)
- people may be incapacitated (or even dead) (instagram has a process for dealing with that)
- such retro-active changes may be illegal depending on the jurisdiction (but adding a clause about continued use past changes in the terms of service will certainly not hurt and of course instagram has just such a clause in place)
Whatever the case, the only way you'll get that settled is by suing them directly over an infringement of the copyright on your content uploaded under the original terms. Doing that pre-emptively is weird, ineffective and serves only one purpose, to give the lawyers that are promoting this class action suit free publicity. This will go absolutely nowhere.
Lawsuits over non-specifics that have not taken place, that you can avoid and that may never take place without specific damages are not good candidates for class-action.
> Third, yes lawsuits are a "cost of doing business" in the U.S. but comparing it to Switzerland is comparing apples and oranges.
For a multi-national this is everyday life. They compare the cost of doing business from country to country and this factors into pricing the product.
> The Swiss have far more regulation and government oversight of companies than in the U.S. European countries in general set detailed standards and guidelines for consumer products and services, while the U.S. prefers to handle such things through litigation.
Indeed. Whether or not that is the better way is up for grabs. But class action lawsuits on free services before actual infringement takes place is a load of bull.
The one thing that I don't get is why people are still surprised over things like this. It's par for the course, and has been for more than a decade now.
It's not about the money. It's about privacy.
When Google offered a good email service free of charge, I took them up on it. That does not mean that I would be even remotely okay with them re-writing their privacy agreement to they could start selling my personal emails to corporations or people willing to pay. If that day came, I absolutely would want to sue. Since it would be nearly hopeless to take on a company with the resources of Google on my own, a class action lawsuit would be an attractive option.
The fact that a service is provided for free is completely unrelated to obligations regarding privacy. Some here might ask, how does the service make money? Figuring that out is the responsibility of the owners, not the customers.
If you are going to sue then you have to wonder what it is that you want to achieve! Do you want to achieve that they'll stop doing it? Ok, then deny them your content, and start doing that today. Terms and conditions as a rule contain a clause that says that they can be amended at some point in the future. That alone makes most t&c completely meaningless and giving a company a large amount of data on you is a risky proposition at best.
Google is probably not dumb enough to try to sell your data direct, in spite of that you have to wonder if a free email service is worth the downside of giving some corporation such a tremendously detailed insight into who you are, what you do and who you communicate with. The safe assumption is that they'll datamine it as much as they can get away with, to monetize it as much as they can get away with just short of infuriating you enough that you'll quit.
If a service is provided for free the coin is your privacy, any assumptions to the contrary are naive. The only question is whether or not you think the trade-off is worth it. For me it isn't.
>If you are going to sue then you have to wonder what it is that you want to achieve!
In the above scenario of them illegally selling my private communications to the highest bidder, I would want damages to 1) sufficiently compensate me for any violations of my privacy and 2) provide a powerful disincentive to other companies who might consider taking similar actions, thus shifting the game theory of mass consumer social businesses. In order to achieve the second of these aims, criminal charges for the offending parties would be more effective than mere financial penalties.
> Terms and conditions as a rule contain a clause that says that they can be amended at some point in the future. That alone makes most t&c completely meaningless and giving a company a large amount of data on you is a risky proposition at best.
Fortunately there are laws beyond T&C click-throughs. I support strengthening those laws in regards to any kind of of privacy bait and switches. In cases where I have a reasonable amount of trust in the company (e.g. Google), I'll use the service. But I'll still support legal protections, the EFF and those who call out underhanded companies.
Call me naive if you like, but I prefer that response to taking an RMSesque one-man stand by simply not using the tools the rest of the world is adopting.
That's just one hack or a terms-of-service change away from happening. Again, google being hacked at that level is unlikely (but they've had an instance of an engineer going rogue and accessing customer accounts for stalking purposes), and google changing their TOS in such a customer hostile way is also unlikely but I would never bet against either of those happening in the longer term.
> In the above scenario of them illegally selling my private communications to the highest bidder, I would want damages to 1) sufficiently compensate me for any violations of my privacy
You're going to have to define 'sufficiently'. What price would you put on your privacy? A few hundred bucks (the typical take in a class action suit is much smaller than that, except if you're a lawyer of course). A few thousand? Tens of thousands? Hundreds of thousands? For me it is high enough that I won't consider taking the risk. And if I did take the risk I'd have implicitly granted google the ability and possibly even the right to screw me over. Using the legal system to seek redress over something that I can avoid in a much simpler way seems to be the easy solution to me. Convenience has a price, but my privacy is worth a lot more than the value of convenience.
> Fortunately there are laws beyond T&C click-throughs.
Sure there are. But especially in the United States those laws regarding privacy are pretty weak. And these are all US companies we're talking about here.
> I support strengthening those laws in regards to any kind of of privacy bait and switches.
I would too, but right now bait-and-switch is perfectly legal, as long as you warn up front that you can change your terms you're in the clear.
> Call me naive if you like, but I prefer that response to taking an RMSesque one-man stand by simply not using the tools the rest of the world is adopting.
For me it isn't worth it, for you it is. If you look back in a few years with regret then you have to wonder what real grounds you have for a lawsuit, after all this is apparently something you are aware of, you can't use the law to fix such things after the fact. The loss of your privacy can not be undone.
Although the entitlement mentality shown by users is certainly an overreaction, primarily by users who don't understand the corporate structure that they've bought into by their use of the services, I can't say that xkcd comic you quoted in support of your position is valid.
These companies turn the data we the users produce from our individual actions and queries into a marketable asset that they can (if everything goes according to plan) profit from. This means that their service is not offered altruistically or even unwillingly; their persistant existence relies on our using their services.
I don't want to come off like a privacy nut, because first of all it would be hypocritical given that I am a user of Google and Gmail, but something just doesn't smell right to me about this situation we have all gotten ourselves into by using these products.
And that the service that you sign up for is probably not the service that you'll see a few years down the line when the pressure to monetize is up. Until then you shouldn't be asking if there is a catch, but what the catch will be.
Period.
What you need to understand is this: IP has real value. Period. So when a company secures limited use of yours in return for a specific service under a specific set of terms, they have no business retroactively changing those terms, any more than they would in the case of a cash transaction. And stating that the terms can be changed simply means the company is free to evolve the service, and renegotiate accordingly. It doesn't mean that they can secure your agreement under one set of terms, change everything, and retain unbroken consent.
Every contract is based on an exchange of value. Both parties provide something, and both parties take something away. While it's fair to classify as "customers" those who pay cash, it's a mistake to think that other parties to the transaction are less than fully protected by the laws that govern exchange in general.
Over nine-tenths of the proceeds will go to the various lawyers, a couple grand will go to whatever plaintiff they managed to scrape up, and the rest will go to some ineffectual non-profit initiative everyone will forget about the moment after the lawyers are paid. Class action trolling at its finest.
Can a free user actually receive financial compensation from a lawsuit like this? How would a company's liability even be measured in dollars for this service?
Bandwidth expenses incurred by the user?
Their terms of service are in direct contradiction of that, but it will still take a lot of effort with likely nothing left for the members of the class to put the lie to that. After all, if their homepage says 'friends and family' and in their terms-of-service they state that they'll share your data with a whole pile of others, including advertisers then they're clearly not billing themselves right. But to translate that into a damage amount is going to be a tough and very uphill battle. After all, we all read the terms of service to all the services that we use, right?
But it's Paypal. They're above the law. Just like stubhub. Well no surprise there.