Instagram says it now has the right to sell your photos - With NO Opt Out
In its first big policy shift since Facebook bought the
photo-sharing site, Instagram claims the right to sell users' photos without
payment or notification. Oh, and there's no way to opt out.
by Declan McCullagh
December 17, 2012 9:54 PM PST
Instagram said today that it has the perpetual right to
sell users' photographs without payment or notification, a dramatic policy
shift that quickly sparked a public outcry.
The new intellectual property policy, which takes effect
on January 16, comes three months after Facebook completed its acquisition of
the popular photo-sharing site. Unless Instagram users delete their accounts
before the January deadline, they cannot opt out.
Under the new policy, Facebook claims the perpetual right
to license all public Instagram photos to companies or any other organization,
including for advertising purposes, which would effectively transform the Web
site into the world's largest stock photo agency. One irked Twitter user
quipped that "Instagram is now the new iStockPhoto, except they won't have
to pay you anything to use your images."
"It's asking people to agree to unspecified future
commercial use of their photos," says Kurt Opsahl, a senior staff attorney
at the Electronic Frontier Foundation. "That makes it challenging for
someone to give informed consent to that deal."
That means that a hotel in Hawaii, for instance, could
write a check to Facebook to license photos taken at its resort and use them on
its Web site, in TV ads, in glossy brochures, and so on -- without paying any
money to the Instagram user who took the photo. The language would include not
only photos of picturesque sunsets on Waikiki, but also images of young
children frolicking on the beach, a result that parents might not expect, and
which could trigger state privacy laws.
Facebook did not respond to repeated queries from CNET
this afternoon. We'll update the article if we receive a response.
Another policy pitfall: If Instagram users continue to
upload photos after January 16, 2013, and subsequently delete their account
after the deadline, they may have granted Facebook an irrevocable right to sell
those images in perpetuity. There's no obvious language that says deleting an
account terminates Facebook's rights, EFF's Opsahl said.
Facebook's new rights to sell Instagram users' photos
come from two additions to its terms of use policy. One section deletes the
current phrase "limited license" and, by inserting the words
"transferable" and "sub-licensable," allows Facebook to
license users' photos to any other organization.
A second section allows Facebook to charge money. It says
that "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." That language does not exist in the current terms of
use.
Google's policy, by contrast, is far narrower and does
not permit the company to sell photographs uploaded through Picasa or Google+.
Its policy generally tracks the soon-to-be-replaced Instagram policy by saying:
"The rights you grant in this license are for the limited purpose of
operating, promoting, and improving our services." Yahoo's policies
service for Flickr are similar, saying the company can use the images
"solely for the purpose for which such content was submitted or made
available."
Reginald Braithwaite, an author and software developer,
posted a tongue-in-cheek "translation" of the new Instagram policy
today: "You are not our customers, you are the cattle we drive to market
and auction off to the highest bidder. Enjoy your feed and keep producing the
milk."
One Instagram user dubbed the policy change
"Instagram's suicide note." The PopPhoto.com photography site
summarized the situation by saying: "The service itself is still a fun
one, but that's a lot of red marks that have shown up over the past couple
weeks. Many shooters -- even the casual ones -- probably aren't that excited to
have a giant corporation out there selling their photos without being paid or
even notified about it."
Another unusual addition to Instagram's new policy
appears to immunize it from liability, such as class action lawsuits, if it
makes supposedly private photos public. The language stresses, twice in the
same paragraph, that "we will not be liable for any use or disclosure of
content" and "Instagram will not be liable for any use or disclosure
of any content you provide."
Yet another addition says "you acknowledge that we
may not always identify paid services, sponsored content, or commercial
communications as such." That appears to conflict with the Federal Trade
Commission's guidelines that say advertisements should be listed as
advertisements.
Such sweeping intellectual property language has been
invoked before: In 1999, Yahoo claimed all rights to Geocities using language
strikingly similar to Facebook's wording today, including the "non-exclusive
and fully sublicensable right" to do what it wanted with its users' text
and photos. But in the face of widespread protest -- and competitors
advertising that their own products were free from such Draconian terms --
Yahoo backed down about a week later.
It's true, of course, that Facebook may not intend to
monetize the photos taken by Instagram users, and that lawyers often draft
overly broad language to permit future business opportunities that may never
arise. But on the other hand, there's no obvious language that would prohibit
Facebook from taking those steps, and the company's silence in the face of
questions today hasn't helped.
EFF's Opsahl says the new policy runs afoul of his
group's voluntary best practices for social networks. He added: "Hopefully
at some point we'll get greater clarity from Facebook and Instagram."
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