Instagram’s terms of use debacle

“I meant what I said and I said what I meant.”
– Dr. Seuss, Horton Hatches the Egg

“Oh what a tangled web we weave,
When first we practise to deceive!”
– Sir Walter Scott, Marmion, Canto vi. Stanza 17.

So yesterday it was Instagram’s turn to establish beyond any shadow of a doubt that a social media company can often be utterly and absolutely socially inept.

Only Instagram’s own insiders know for sure whether its attempt to foist a ridiculously one-sided set of terms of use off on its users was merely a mistake or whether it seriously thought it could sneak a major rights grab past its users.

Either way, it ought to serve as a major reminder to all of us 21st century genealogists that our Internet lives are regulated by online terms of use — contracts that dictate not just what we can do with the content of websites we use but also what those websites can do with content we create and upload to share with our friends and associates.

And it should be a wake-up call to us all: we simply have got to read and understand these contracts and — when necessary, as it certainly was yesterday — object to them and threaten to vote with our feet.

For those new to this controversy, let The Legal Genealogist explain.

What the heck is Instagram?

Good question. It’s a photo-sharing and social-networking site that was started in 2010, built up a significant user base, and was bought out by Facebook in 2012. Its major claim to fame is that users can upload a photograph, apply filters to it, and the images are all presented in a square format that can then be shared both on Instagram and on other social networks.1

Why would genealogists use Instagram?

Lots of reasons: it’s easy; it’s got a big user base; it allows both individual genealogists and genealogical societies to build an online brand.

If you want to know more, DearMyrtle did a webinar with Carrie Keele of the Not Your Mother’s Genealogy Blog on ideas to integrate Instagram into genealogy back in August,2 and the idea’s been featured in UpFront, the blog of the National Genealogical Society.3

So what did Instagram do yesterday?

It got caught with its hand in its users’ cookie jars. Asserting that it was doing so to “help protect” its users,4 it posted updated terms of use that were scheduled to go into effect on 16 January 2013.

Among those updated terms of use was an almost-unrestricted rights grab: it would have allowed Instagram to sell the right to use any photo uploaded publicly on Instagram to any advertiser for any use, without notice to the user-uploader and without payment. The exact language was: “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.”5

Of course, the reality is, that dog was never gonna hunt.

First of all, photos of people can’t be used for commercial purposes without the permission of the person photographed, not just the photographer. And there’s nothing in the terms of use requiring a photographer to represent that he or she has secured a release from the person photographed that would allow the photo to be used by an advertiser.

Secondly, I’m not at all sure that trying to slip something like this by in terms of use would be enough to override copyright protection, whether the photo was of a person or not. Someday, a court is going to have to answer that for once and for all.

And, more than anything else, any half-way competent social media operator should have known that it was never going to get away with sneaking a provision like that past its social-media-user customers. It was thoroughly predictable that, the minute word got out, all hell was going to break loose.

“Instagram says it now has the right to sell your photos,” reported C|Net — with 533 comments posted in reply.6 “You could star in an advertisement — without your knowledge,” said The New York Times.7 “Instagram Will Basically Sign Your Life Away,” said Mashable.8

And how did Instagram respond?

It did what any self-respecting rights-grabber would do when it was caught with its hand in its users’ cookie jars. It baldly asserted that it hadn’t meant to do any such thing.

By about 5:30 p.m. EST yesterday, Instagram backpedaled at about a kazillion miles an hour and said it didn’t mean to put its hand in its users’ cookie jars, and it didn’t have any plans to actually take any of its users’ cookies. Its co-founder, Kevin Systrom, wrote in a blog post:

(The new language) was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear. …

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.9

And, he lamented, “Legal documents are easy to misinterpret.” Basically, Systrom’s backpedalling boiled down to this: well, hey, it didn’t really mean what it said.

Which is, of course, why the quote from Horton Hatches the Egg is featured at the top of today’s blog.

And how did Instagram users respond?

They said, politely (well, in most cases at least), that they didn’t quite believe Instagram as far as they could throw it. Said one user on Twitter: “just because a CEO says “we didn’t mean it,” doesn’t mean all’s well.” Another wrote about the “we didn’t mean it” blog post: “I call BS, but read and make your own decision.” Said a third: “the “explanation” didn’t make it any more clear, because Instagram doesn’t think we’re entitled to such.” And yet another’s reaction exactly mirrored mine: “#instagram lawyers worked overtime today. A simple summation of the days events: foot-in-mouth.”

Which is, of course, why the quote from Sir Walter Scott is featured prominently above.

Now I’m not saying the whole backpedal was part of a deception, mind you. I’d never say any such thing. No, not me.

But Instagram certainly found itself in a tangled web, didn’t it?

So what does this mean for us?

It means we need to watch our backs. Even social media companies can be social media idiots, and bring down the wrath of their user bases on their heads. But that doesn’t mean they won’t be back, next week, next month, next year, with some other change in the terms of use that does something we won’t like and can’t live with.

And if we’re not regularly checking the terms of use of services we rely on heavily, something very well may slip by.

Hmmm… maybe I need another quote… what’s that old saw about eternal vigilance…?


 
SOURCES

  1. Wikipedia (http://www.wikipedia.com), “Instagram,” rev. 18 Dec 2012.
  2. DearMYRTLE’s Instagram for Genealogists Workshop Webinar featuring Carrie Keele,” DearMyrtle, (http://www.dearmyrtle.com/webinars/ : accessed 18 Dec 2012).
  3. Instagram — Might we use it for genealogy?,” UpFront, posted 28 Sep 2012 (http://upfront.ngsgenealogy.org : accessed 18 Dec 2012).
  4. Privacy and Terms of Service Changes on Instagram,” Instagram Blog, posted 17 Dec 2012 (http://blog.instagram.com : accessed 18 Dec 2012).
  5. Terms of Use,” effective 16 Jan 2013, Instagram (http://instagram.com/ : accessed 18 Dec 2012).
  6. Declan McCullagh, “Instagram says it now has the right to sell your photos,” C|Net, 17 Dec 2012 (http://news.cnet.com : accessed 18 Dec 2012).
  7. Jenna Wortham and Nick Bilton, “What Instagram’s New Terms of Service Mean for You,” New York Times, posted 17 Dec 2012 (http://bits.blogs.nytimes.com : accessed 18 Dec 2012).
  8. Chris Taylor, “Instagram Will Basically Sign Your Life Away,” Mashable, posted 17 Dec 2012 (http://mashable.com : accessed 18 Dec 2012).
  9. Thank you, and we’re listening,” Instagram Blog, posted 18 Dec 2012 (http://blog.instagram.com : accessed 18 Dec 2012).
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16 Responses to Instagram’s terms of use debacle

  1. Pat Richley-Erickson says:

    Thanks for having my back, Judy, by making some sense of all this legal mumbo jumbo!

  2. Celia Lewis says:

    Good to see you have a well-rounded education, Judy with your oh-so-appropriate quotes at the beginning. I’ve never gotten into Pinterest nor Instagram – enough is enough for social “stuff”. Sigh. And I still love going through photo albums and old cookbooks etc. with my grandchildren… Thanks for the great summary post on the latest on TOS!

  3. Jeff says:

    You said that Instagram is owned by Facebook, right? Well, that explains everything.

  4. Jim Poole says:

    I have enough to do keeping hackers from defacing my plain ol’ simple website, without getting involved with these Instagram-type sites where the vandals are the owners. At least my hosting service isn’t stealing my content- just cashing my checks and sitting idly by while the hackers run amok.

    I suppose those lucky members of the genealogy community that have a wealth of both family memorabilia and fellow enthusiasts might find the social media/ sharing sites very useful, but given the lack of either resource in my families of interest, I have been- thus far- avoiding these sites, and hence ignoring their predatory usage policies. However, the Pettypool’s did recently tiptoe into the social whirl with FaceBook and Google+ pages describing the family sites, so I guess I had better start paying more attention to these excellent descriptions of the policy hazards awaiting me.

    • Judy G. Russell says:

      “Watch your back” is the best advice I can give you, Jim. Never ever post anything on a sharing site without carefully reviewing the terms of use. Double check the terms of use every so often and be prepared for changes at any time.

  5. I’ve been leery of Instagram from the beginning–and I’m not even a part of it! When I saw the announcement the other day, though, I had that sinking pit-of-the-stomach feeling just as much as if I had been an Instagram user. Those are the kinds of terms I definitely try to avoid when it comes to photos. I sincerely hope they never become part of the “norm.”

    I add my thanks to you, Judy, among all the rest: thank you for watching our backs!

  6. Bob says:

    Judy, I agree we all need to pay more attention to the user agreements we unwittingly sign up for. But I was asking myself, Why would they be interested in pictures of someone’s great grandfather, or a kid’s birthday party or whatever, when I saw one of those breathless gossip site headlines about “Beyonce’s Hottest Instagram Pix!” I’m guessing pictures of Billy’s birthday party never even crossed their minds.

    • Judy G. Russell says:

      I’m not so sure about Billy’s birthday party — can’t you see Big Toymaker wanting to horn in if Billy’s smile is caused by Big Toymaker’s toy being unwrapped? That was the fear — and I can’t say it’s totally unreasonable. I don’t think it would have lasted long if challenged in court, but for most people the thought of it happening once would be more than enough.

  7. I’m so glad to have your interpretation of what happened, Judy. Yes, I thought their “terms of use” language was not confusing (as they later said) at all. It clearly sounded like a rights-grab to me. I’m also glad to know that the public is now extra wary — both of Instagram and of others who might “edit” their terms of use. A great wake-up call. In that way, Instagram has performed a service for us all.

    When I’m updating stuff on my computer I barely glance at the “Agreement” we’re supposed to sign off on. I used to think I couldn’t be bothered to slog through the usual boiler-plate. Now I’m going to think again.

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