In the days since, it became clear that we failed to
fulfill what I consider one of our most important
responsibilities – to communicate our intentions clearly.
They keep focusing on the fact that their TOS wasn't clear. I think it was very clear that they were trying to grant themselves a lot of privileges to use people's photos.
Agreed, I don't think they could have been any more plain that they were claiming the right to license your photos to anyone for anything. I think people understood that clearly, including National Geographic, who put their account "on hold" due to the TOS.
Yes. All their answers have been polite ways to say "you are a bunch of stupid people who don't understand basic grammar". That's sad.
But, to be honest, I don't know what else they could have said or done. They probably shouldn't be fully transparent and say "we tried a way to shear the sheep and the sheep did overreact, let's try another way".
They could have taken the blame for meaning one thing, saying something else entirely, and apologizing to their users for all that alarm that their clumsy TOS justifiably provoked.
This could be followed with a brief account of how they actually see advertising working on the site (hopefully it's not stupid or creepy), making a retraction of the bad terms, and saying that they'll be revising the terms to support this direction and this direction only.
Finally, they may want to acknowledge that users have every right to value their IP highly, and that Instagram knows that while their service is popular, it doesn't justify the kind of liberties that the bad TOS was taking with IP that isn't Instagram's in the first place, and what they're really focused on is a trade that everyone sees as fair. They can add that they appreciate people's patience as they take the time to get the exchange right.
That's exactly what "not clear" means. They are claiming that their intentions were not the same as what people thought upon reading their terms. Now, they could be lying about their intentions, but I suppose there's no way to prove that either way.
No "not clear" means that you (and possibly even a judge) can't understand what rights the license grants. "Unnecessarily sweeping" would seem to be a better description here than "not clear" assuming their intentions were as they say.
The license is not really the place to explain intentions except where they place limits on rights but to define who has what rights. A blog post or a preamble about how the rights they receive will be used is more reasonable for that.
I already nuked my account yesterday, je ne regrette rien. There are too many viable competitors (plus I'm already a paying flickr account holder) and facebookagram doesn't really have much of a differentiating advantage over them. I hope flickr gets a nice bump out of this and others take heed that they need to keep their legal department sober when they're coming up with these TOS changes.
The other thing that's disappointing about instagram is that they want to get into the creepy 'social' side of the advertising at all. I would've loved them for offering an affordable subscription that gave you power user features like what flickr offers, and promising to stay the hell away from manipulating my social relationships for profit.
They still don't get the point - It wasn't about "being clear" about their TOS. It was about misleading their users unethically.
Instagram's pitch before their users came in-
"Hey we're a free photo enhancing service, come and join us, we don't sell your photos"
Instagram's mindset after they got their users -
"You know what? We need to make some quick cash. We're going to claim all your photos as ours and we are going to give ourselves the right to do whatever the shit we want to do with it, even re-sell it."
Some questions:
If you had intentions to make money, it's perfectly understandable. But who gives you the right to re-sell our content? You never told us that you're a stock photo site when we joined you and you had intentions to re-sell our content, You're luring users to join your service under the guise of 'FREE' while you have malicious intentions inside you.
Now we know what this unethical company is capable of, I am never going to rejoin their service, no matter what their TOS says. Because fuck you, that's why.
A lot of the commentary here refers to Instagram as an omniscient "they" — as if Instagram is a group of people carefully coordinating terms of use edits. In the vast majority of websites, this isn't how it goes down. Here's the usual process that I've seen:
* Product (or Sales) will ask if they have the right to do something (now or in the future). No one is sure, and the issue is eventually bounced to Legal.
* Legal eventually tells them that the answer is no (or that it's unclear), and that the Terms will have to be edited to give 100% permission.
* Legal then goes ahead and proposes edits to the terms or privacy policy. Because they are lawyers, they focus on giving the website the absolute broadest possible permission. At no point is the Marketing or Communications team informed or consulted.
* Legal then coordinates with Product, and the changes are rolled out at the same time as (or shortly before) the product changes go live.
Then either users simply don't care, or they do and then this happens:
* Users spot the changes and freak out.
* The Marketing and Communications freak out as well, and hear about the changes (often for the first time).
* The Terms of Use are revised again, so that they more clearly communicate their original intent. Users either decide they still trust you, or they decide that the trust has been breached and look for alternatives.
I have seen this happen again and again. Very rarely is the website actively trying to screw their users. Much much more often, the real culprit is a lack of communication between the Legal and PR/Communications team.
It is absolutely critical that your General Counsel be on good terms with your head of PR (and that your head of PR/Comm is friendly with your head of Product). If that's the case, then these issues tend not to crop up. If not, then they tend to explode very publicly and violently on the entire company.
The #1 thing you can do to avoid these issues is to treat edits to the Privacy Policy and Terms of Use as a major communications effort, and make sure that all changes are vetted with an internal advocate for your users (ideally, your Comm team is led by such a person). Otherwise, you could be headed for a blowup very similar to this one.
I'm not saying you're wrong, in fact I'm quite sure you're right in how things often happen.
However, for a service like Instagram, the ToS are a critical part of the business. Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards, but the strategy should be coming from the top, and the responsibility should rest there.
"Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards"
That's actually the sort of compartmentalization that creates these problems. "Whoever sets the overall strategy for the product" = the head of Product or the Product Manager for a specific feature. This person rarely has any legal or communications experience. If the legal team's job is just to "encode" what product wants, then that's actually where the problem starts.
The only real solution here is for Product, Legal and Communications to work together from the beginning. The product feature should be designed with Legal and Comm concerns in mind. Otherwise, the danger is that you'll end up exposed to exactly the sort of snafu that Instagram experienced here.
I'm not arguing for compartmentalisation, nor against the importance of all the teams you are talking about working together. There would absolutely need to be back and forth between legal and product as part of the encoding I am talking about, for example.
But it seems to me that if this was happening at even a basic level, then whoever is in charge of the product at Instagram must have known they were adding some pretty onerous terms. And if they didn't, it's a pretty massive failure to take the ToS seriously.
Neither option inspires confidence in a service that people provide with important data.
Really good points. Product is ultimately responsible for the user experience. The PM or head of product may not be a legal expert, but they better be an expert in knowing their users. Stakeholders signed off on the ToS or ToU. Each bears responsibility. However, Product is directly responsible for the outcome which is why a strong voice is needed - one that can say, "No Way!" when necessary. Of course, if the decision is made higher up the chain, then this just supports how deliberate the ToS change was - deliberate and worded exactly as it was intended. The wording was definitely unique enough that someone knew what was being asked for - legal expert or not - it was pretty clear.
The new TOS includes the agreement that users' photos are sub-licensable, something not mentioned in the current TOS.
Isn't this essentially what they were claiming in the previous version of the new TOS, expect this time it's not in your face that they can charge others (including advertisers) to use you images and not pay you?
"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"
The previous TOS said the following:
"Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services"
"Instagram does NOT claim ANY ownership rights in the text, files, images,
photos, video, sounds, musical works, works of authorship, applications, or
any other materials (collectively, "Content") that you post on or through the
Instagram Services"
But I'm not sure why you quoted that sentence and or why you failed to include the sentence after the one you quoted:
"By displaying or publishing ("posting") any Content on or through the
Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid
and royalty-free, worldwide, limited license to use, modify, delete from, add
to, publicly perform, publicly display, reproduce and translate such Content,
including without limitation distributing part or all of the Site in any
media formats through any media channels, except Content not shared publicly
("private") will not be distributed outside the Instagram Services."
The above sentence seems to be the most relevant to the discussion started by the parent comment.
For the sake of comparison, the equivalent section of the Flickr UK TOS [1]. The difference seems fairly stark.
>With respect to Content you elect to post for inclusion in publicly accessible areas of Yahoo! Groups or that consists of photos or other graphics you elect to post to any other publicly accessible area of the Services, you grant Yahoo! a world-wide, royalty free and non-exclusive licence to reproduce, modify, adapt and publish such Content on the Services solely for the purpose of displaying, distributing and promoting the specific Yahoo! Group to which such Content was submitted, or, in the case of photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Services. This licence exists only for as long as you elect to continue to include such Content on the Services and shall be terminated at the time you delete such Content from the Services.
Too late, I have already deleted my account, as have countless of my friends and family. Switched to Flickr, was already a Pro member there, might as well use the service that I pay for :-)
Same, too little too late for me. Kind of figured they'd find themselves in a big enough pickle to have to revert back. But the tos changes gave me the spark I needed to escape. Instagram is no where near essential enough to my life to pull shit like that. I like how everyone started posting articles like, "you wouln't do it"...About how everyone makes empty threats about quitting in times like this but never does. I found the decision easy. And i'm probably better off for it. A stack of burnt out 612x612 images was useful 10 years ago, the novelty is far past gone.
Are these friends and family that you mention in the tech industry, or at least follow it closely? Because in my circle of friends and family, minus a few that work in tech, nobody has even mentioned, or I think even know, about this whole privacy issue.
Out of curiosity, is there a process or an app that allows similar functionality with Flickr? (take photo --> apply filters --> upload & share to facebook/twitter/etc) ??
It was 'cool' because it's a really nice mobile app experience. Flickr didn't have this until, uh, a week ago. (& that app is absolutely Instagram inspired)
It was obviously going to 'go south' with the FB acquisition, though.
> Going forward, rather than obtain permission from you to introduce possible advertising products we have not yet developed, we are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work.
This is another extremely patronizing non-retraction. He isn't saying anything new, displays a fantasy viewpoint of what happened/why people were upset and promises to fudge this whole process up again sometime in the future.
I know Instagram is built on people not looking at degraded pictures more than once, but do they think folks won't read and re-read these updates. I'm out. Back to Flickr.
Everyone keeps mentioning Flickr. Granted, I never used Instagram, but all this got me thinking about wishing for a way to upload and share my photos with friends and family without giving them to Facebook or Yahoo.
I'm surprised I haven't seen anyone mention this addition to the ToS:
"Except if you opt-out or for … 'Excluded Disputes' …, you agree that all disputes between you and Instagram (whether or not such dispute involves a third party) with regard to your relationship with Instagram, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration …"
So if you fail to opt out of binding arbitration and they do go ahead and use your likeness in ads without your permission, you don't get to sue.
TLDR: Nothing has changed. They still want to sell your photos. You have to grant them "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license".
But heck, wasn't the main purpose of it all to monetize an overpriced aquisition? If FB wants its $1B money's worth, they ARE going to come back to these terms sooner or later.
