the candler blog

Getting Out While I Can

Photography, Technology

Instagram’s new Terms of Use went live yesterday (they take effect January 16th) and, well, everyone is up in arms. Nilay Patel has a great piece over at The Verge1 on what the terms do and don’t mean.

Though everyone’s talking about the paragraph on how they plan to use users’ photos to generate ad revenue, I’m more interested in the lines that precede it. Let me break it up (emphasis mine):

Instagram does not claim ownership of any Content that you post on or through the Service.

Hooray!

Instead…

Instead?

Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy, available here: http://instagram.com/legal/privacy/.

All that worldwide, sub-licensable, royalty-free mumbo-jumbo is pretty common.2 It means that you give the company license to use your work on their service.

What is weird about Instagram’s terms, though, is that it doesn’t make clear what the limits of this license are as some other companies do.

Here are Apple’s iCloud Terms of Service, which includes use of Photo Stream:

Except for material we may license to you, Apple does not claim ownership of the materials and/or Content you submit or make available on the Service.

Hooray again?

However…

Whatever.

However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you.

By my armchair reading, this stipulation gives users a bit of a cudgel should Apple suddenly decide it wants to get (deeper) into the ad business. Apple only has the right to do with your photos whatever you ask it to.

Yahoo!, which owns Flickr, takes a similar tone:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available.

Plus Flickr makes it simple for you to set a license on your photos.

Google, whose Picasa is basically a Google+ front-end nowadays, injects plain english into their terms:

You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

Then the same ol’ royalty-free gobbledygook for a few lines before this:

This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps).

When you’re a jet, you’re a jet all the way.3

By contrast Apple and Yahoo! explicitly state the license is terminated once you remove your photos from the service. Instagram? It’s less clear to me:

If we terminate your access to the Service or you use the form detailed above to deactivate your account, your photos, comments, likes, friendships, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service (e.g., if your Content has been reshared by others).

Followed immediately by:

Upon termination, all licenses and other rights granted to you in these Terms of Use will immediately cease.

Licenses granted to you. I’m no lawyer, but it sounds like that license you granted to Instagram stays put even after you delete your account.

That is, unless you delete your account before January 16, 2013. That’s exactly what I plan to do once I get all of my photos off of the service. I’ve already downloaded my photos through Instaport,4 but that service doesn’t pull down your caption or metadata. I don’t know if Instagram’s API even allows for full metadata extraction, but I’m on the prowl for a tool that gives me a more complete version of my files.

I don’t begrudge Instagram their efforts to monetize their service, nor Facebook’s attempt to get a bit of money back on their billion dollar investment.5 That doesn’t mean I need to be a part of it though.

And so I’m moving to Flickr. Their new iOS app is slick and has renewed interest in the social photo-sharing service. I’ve been an on-again-off-again Pro user for years. Soon I’ll start tinkering again on what was once one of my favorite online communities. Perhaps it will be again.

I don’t know what Instagram under the new terms will be like. Maybe I’m being irrational, but I don’t think so. The truth is I don’t want to have to worry about whether my photos will be used to sell products. That is unless I’m getting a cut.

So if you want to check out my pics, I’ll be over on Flickr, snapping away.

  1. I know, I know. No one beats Nilay when it comes to step-off-the-ledge legalese parsing, though.

  2. If you’ve ever been in a television audience, they make you sign a waiver granting the producers permission to broadcast your likeness anywhere in the universe. At least if you move to Mars you can wriggle free of these cloud licenses.

  3. This, by the way, is why I don’t use Google Docs anymore.

  4. They’re receiving unusually heavy traffic right now so be patient.

  5. Okay, $735 million. Who’s counting?

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