Category Archives: Photo Business

David Byrne and the Independent Creator

I’m peeling this post off of a discussion I’m having on Facebook with Leora Kornfeld, who writes about Disintermediation as a Harvard Research Associate. I think this message is an important one for all independent creators to be thinking about as all content-based industries are changing around us.

Here is David Byrne’s Oped in The Guardian. In it, he argues that new media consolidation on the internet is squeezing the economic sustainability out of music broadcast.

And here’s my take on it:
I think he has a point about the economics of the new aggregators. It’s a little ironic to see a reference to the good old days of the record company fairness, since they were the posterboys of IP robber baronism. 

Now, it’s the tech aggregators turn. It may be an even less fair arrangement, due to a confluence of factors. The end result will probably depend on whether the winner-take-all model topples, or whether it stands. 

Also it’s probably more accurate to say that the new model is sucking the economic sustainability out of the middle and bottom rungs of a professional art form. Whether that translates to the “life” or not is a different question. 

Of course, both of the above questions are linked. Do new disintermediation models spring up to get around the reintermediation™ of Amazon and Pandora? Jeff Goldblum would say that life will find a way.

You’ll see many people in the tech world shrug and say, “Get used to it.” But this ignores the fact that there is no one single natural order of things. The rules (laws) governing business practices set the playing field. And those rules are set by governments.

When radio was new technology, for instance, payola was outlawed. This law was instrumental in the development of music businesses in the radio age. Without these laws, the record companies would have had an even tighter stranglehold on the entire industry and could have required even more onerous contractual terms.

Monopolies deform the marketplace, generally to the detriment all outside stakeholders. Disintermediation is undermining the power of the existing content oligarchies, but reintermediation is apparently on track to bring an even greater concentration of wealth and power into fewer hands.

Along the way, these companies will work to bend the rules in their own favor. So I don’t think that stakeholders outside the new oligarchy should simply “get used to it.” Our laws are ill-equipped to deal with the challenges of the digital age. And we should not leave the law-writing only to those with the highest concentration of wealth and power. History teaches us that they will try to increase their power by tilting the playing field. 

It’s possible that these companies will be prevented from becoming true monopolies through some market-based limiting factor, such as hubris, incompetence or outside competition. But it’s also possible that they win the winner-take-all game.

In that case, as with the monopolies of the last century, it may fall to governments to limit the power of these companies. It’s important for independent creators to stay informed and to advocate for their own best interests.

The other shoe dropping

Late breaking news: Facebook has delayed the implementation of the new policy. Send your comments to Facebook today. Link at the bottom of this post.
Facebook has just claimed the right to use or sell your identity, your content and your data without limit. They have nuked their own privacy policy, removing the right for you to keep anything private.   This takes the suckiness of the Instagram contract and adds even more suck by explicitly making you agree that everything they know about you is for sale, and that you have no right to keep any of it private. The new terms are set to take effect next Thursday.

ReallFcebookYou can find the proposed document here.

 

Facebook has asked for comments. They can be posted here.

 


Here’s the most important language (strikethrough indicates language that is being removed. Bold text is used to indicate the new additions).

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name, and profile picture, content, and information in connection with commercial, sponsored, or related that content (such as a brand you like) served or enhanced by us, subject to the limits you place. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.


The Section-by-Section Summary of Updates takes pains to claim that Facebook has the right to collect and make use of data that it finds “when you are using Fcebook or when Facebook is running.” This probably gives Facebook a license to collect, use, share and sell most of your web browsing (unless you are running software to block cookies) and much of what your mobile phone is gathering, such as your location, phone calls, etc.

They are already collecting a lot of this information. The screenshot below is from my Facebook feed a few hours after I did a search for a hotel in Reston on a totally unrelated site. Facebook is already collecting, using and selling this kind of information. They are now asking for irrevokable permission to continue, and to add your photos to the mix.

130829_Facebook

As with the Instagram Terms of Use, I believe that Facebook is asking for open-ended permission here that does not serve the needs of users. This is an overly broad agreement that shifts the control over a person or company’s content and identity too far into the hands of Facebook.

I’ll be deleting the mobile application off my phone because I’m uncomfortable with the amount of data it gives to the company. I’ll have to think about any additional action depending on how the company responds to the comments.

The Instagram Papers

DAM Useful Publishing and ASMP have just released The Instagram Papers, a collection of essays about the current Instagram Terms of Use, and the rights that they give the company.  The company claims a right to do nearly anything with the photos and videos uploaded to the service, including to sell them, forever.

TheRightToTerminate

In response, we have put out an open call for a meaningful right to terminate social media contracts. We believe that the right to sublicense your photos and identity should be something you can revoke, if the company’s practices become objectionable.

Over the next few months, ASMP will be working with other organizations to advocate for this basic contractual right. If you are interested in lending your name or your organization’s name to the effort, you can contact me here.

Here’s a link to the complete papers, which are available for free download and distribution.

 

 

Instagram Terms – Still Terrible

Instagram made a big deal of backpedaling through the PR storm it created with the proposed Terms of Service (TOS) changes. They claim to be really sorry, and that they have learned their lesson and will respect their users’ wishes better in the future.

After reading the amended terms of use scheduled to take effect January 19th, 2013, I’m unimpressed with the changes.  Some extra-crappy parts include:

Continue reading Instagram Terms – Still Terrible

Instagram creates terrible new user agreement

 

I’m generally not alarmist about web rights boilerplate, since there is often a lot of ambiguity. Nothing ambiguous about this. (Item 2 in Rights, emphasis added.)

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, 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.

Note that this includes minor children.

If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

Oh, and you agree to indemnify them in case of breach of privacy. (That means you agree to pay their legal team in the event one of your subjects sues for being included in a viagra advertisement).

(Item 4 in Rights)

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

And this part in Indemnification:

You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Instagram’s request), indemnify and hold the Instagram Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Instagram in the defense of any claim. Instagram reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Instagram.

Note that this language seems to grant a license to the actual photograph, and not just the copy uploaded to Instagram. If they could find a high-res version somewhere, they may have the rights to that also.

The only opt-out is to delete your account.

The changes take effect January 16, 2013.  So, what does one do?  Well, I don’t see much option except to delete the account.  And if your tween or teen child has an instagram account (and many of them do), you’ll want to think about blocking that.

Instagram claims the rights to any photos uploaded after January 16th in perpetuity, regardless of whether you delete your account later.

(Cnet article here.)

This is breathtakingly horrible.