Instapanic: New terms grant Instagram right to sell users’ photos, share data and more
posted Tuesday, December 18, 2012 at 7:53 PM EST
Should it wish to do so, Instagram's new terms give it sweeping powers to profit from its users' images without gaining individual consent, and without them receiving a share of the profits.
The changes have been widely dubbed the site's suicide note by some users, and it seems likely that if Facebook doesn't back down on the changes, it will find itself facing mass defections to rival services, much as Yahoo's now-defunct Geocities site did when it's terms of service were similarly updated a little over a decade ago. (In that case, Yahoo eventually backpedaled, but arguably significant damage had already been done by then.)
However, alongside these more innocuous tweaks, there are several changes in Instagram's TOU likely to prove showstoppers for a significant population of the Instagram community. Here they are in a nutshell:
While it continues to note that it doesn't claim ownership of users' content, Instagram's new TOU now gives it transferable, sub-licensable rights to use that content. As before, it can do so without pay or royalties, on a non-exclusive basis. What exactly does this mean? Should it choose to do so -- and it's important to note that it hasn't yet stated any such plans -- Instagram could sell user content to a third party. Users would have no say as to which parties the content was licensed to, nor how it could be used, and they would receive no payment for that usage beyond having received their access to the Instagram service free of charge. Of course, the license is non-exclusive, so users could still profit from their works as well, but the fear here is that the change gives Instagram the power to create a massive library of stock photo images -- often complete with geotags and other personal information -- which could be used in advertising, marketing and more.
In this same update to the terms, Instagram has also suggested its belief that a minor under the age of 18 can consent to having their name, likeness, etc. used in advertising without the express consent of a legal guardian, simply by using the service. (As Instagram's terms put it, simply by using the site the minor would "represent that at least one of [their] parents or legal guardians has also agreed to this provision.")
Curiously, the updated terms also suggest that Instagram can now run paid advertisements masquerading as site content, thanks to a provision stating that users must "acknowledge that we may not always identify paid services, sponsored content or commercial communications as such." The terms also allow Instagram to share information with third-party sites through external links -- presumably referring to the site's application programming interface (API) -- while disclaiming Instagram from all liability relating to the manner in which third parties make use of that information.
The new terms also force through the relatively common provision that bars users from taking their grievances with the site to a court, either individually or as part of a class action. Instead, the terms provide only for arbitration proceedings as stipulated by Instagram, or for users to take their cases to small claims court.
With that said, the terms continue to make clear that if Facebook is on the receiving end of legal action due to copyright infringement and the like, that the responsible user(s) will be liable for all such costs. The updated terms also make clear that Instagram isn't to be held responsible for user-generated content that fails to meet its rules.
Instagram's data = Facebook's data
There are numerous other changes to the TOU. For example, Instagram makes it more clear that even should you completely delete your account, some of your content may remain visible to users of the site, and may also be held for as long as necessary to fulfill legal obligations. The site has also granted itself the ability to seize usernames for any reason, where previously it could do so only in cases of trademark violation and the like. Other updates make clear that ideas sent to Instagram may be implemented without remuneration, that the site is unwarranted, that it cannot be copied or rebranded, and that Instagram is indemnified against the actions of its users.
Weighing your options
If you find the new terms impossible to accept, your options are extremely limited. The new terms come into effect from January 16, 2013, and simply using the site after that date constitutes your acceptance of the terms. (Should you cancel service after that date, you will already be deemed to have accepted the new terms, and you will not be able to take any action beyond arbitration or small claims court, as the arbitration agreement "will survive the termination of your relationship with Instagram.") The only way to avoid agreeing with these updated terms -- unless Instagram should revisit its wording before they come into effect -- is to cancel your account before January 16, 2013. Should you decide cancellation is your only option, USA Today has some suggestions for alternate services you might want to consider.
Do you find the new terms objectionable, or are you happy to grant Instagram these expanded rights to your content and information in exchange for the service the site provides? Share your thoughts in the comments below.
(via C|Net, USA Today, Instagram, and more.)