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:

  • Instagram may continue to reuse your content in an extremely broad way, even if you delete your account.  Basically, your material “may persist and appear within the Service” forever. (Basic Terms, Section 17)
  • You assume all liability for any use of the photos or metadata in the photos within their service now and in the future. You explicitly agree to pay their lawyers at their request if they ever get sued by anyone in conjunction to any right of privacy or other right arising out of the use of your photos. Which you have no control over. (The Indemnification section)
  • They can modify the service at any point in the future with no notice and liability to you. (General Conditions, Section 1)
  • You agree that they may update the terms of service in the future, and you agree that you will abide by those new changes. All they have to do to create new terms is to post them on the website, with no further notice required. You do not seem to have the right to remove existing material no matter how much you might disagree with the new terms. (General Conditions, Section 3)
  • The rights you grant to Instagram for your photos and all information they can acquire about those photos is now “transferable, sub-licensable”, with limitation only by the Privacy Policy. (Which you also agree can be changed at their discretion and you will agree to the changes).
  • You agree to never join a class action suit against them, and that any dispute will be resolved by arbitration. (Note that arbitration is traditionally understood to be a very unfriendly place for any kind of customer redress. Basically it’s the place where complaints go to die.)

Note that ALL of the items above are new items in the terms of service – none of them appear in the old terms. (I assume that the previous link will be dead after January 19.)

What actually changed?

So what did Instagram really change from the first announcement?  Basically, they took out the part where they can explicitly sell your photos for advertising with no notice to you.  That’s about it.

And while that was a good change, the remaining language will allow them to implement advertising sales or other potentially objectionable changes at any point in the future, and all content that is already uploaded will not be removable. Nor can you sue them about it. And you agree to pay their lawywers if they get sued.


Let’s review what happened.

Instagram (henceforth referred to as Facebook, since that’s the company making these decisions) put out a proposed TOS change that got the internet all mad and up-in-arms.  Then they said, “Sorry guys, we screwed up. We really feel bad and we won’t do it again.” The internet felt pretty good about itself for stopping that.

And then Facebook put out a revised TOS that includes nearly all the really objectionable stuff, including major changes to the legal framework and the rights of the user. And the Internet said nothing.  (Mostly, it appears as though no one actually read the new TOS.)

So what’s really going on here?  

My close friends (and people I’ve sat next to in bars) know I’m a fan of a good conspiracy theory. Or if not a conspiracy, a sleight-of-hand explanation for strange institutional behavior.

I will bend your ear. Just ask Todd.

Is it really possible that Facebook’s legal and PR teams (surely among the highest paid anywhere) really made the original blunder accidentally?  Even after Facebook has run into the identical problem in the past? Or is it possible that the release of the original revised TOS was a sleight-of-hand, a classic misdirection?

Sure the service took a hit, with the New York Post saying that 4 million daily users dropped out. However, those numbers are suspect, as TechCrunch points out. (The same report shows an increase of weekly and monthly users). The company denies the drop. But even if that hit is real, the likely effect is temporary.

In any case, if I were Facebook, I would consider a daily user base of 12 million governed by the revised TOS to be significantly more marketable and therefore valuable than 16 million governed by the old one.  Especially when you consider the nature of advertising in the Facebook age.

The real strategy

Those who think that Facebook intends to monetize your photos by traditional stock photo sales are way off the mark.  The photos – and more importantly the metadata – are far more valuable when used in the context of your circle of friends and influence. The real value of social media advertising lies in barriers of trust that you can help to break down.

Facebook knows who your friends are, who your community of influence is, where you go (at times), what you buy (at times), who you communicate with when you are there, and who pays attention. What the company advertising with Facebook is really buying is you, including the interconnected web of your community and the personality of the community you inhabit, and your credibility.

The Instagram photos are simply an easy way to encourage your community to open the door and let you in (and whomever else is along for the ride).  The new terms of service make it much easier to build a monetization strategy around your Instagram/Facebook community.

It’s important to say here that I don’t have a problem with Facebook trying to make a return on its investment. They have (for the moment) created the Holy Grail of tech businesses. Companies tried for more than a decade to build what they built, but they are the ones who did it. The services they provide have value and don’t come cheap. If there’s no payback, they can’t continue to offer them. And there’s no guarantee of success.

A billion dollars is a lot of money, and that’s what Facebook paid for Instagram (well, in stock, which fudges that number more than a little bit). It’s possible that, like so many companies before them, they will fail to provide a profit that sustains the investment and overhead of the enterprise.

Back to the real issue

But I’ll return to the main point of this piece. I think the methods they are using here are a bad deal for the user. And mostly because there does not seem to be a way for the user to leave and take her identity with her. It’s a perpetual license to use your identity in service of, well, whatever they want to use it for. And you are giving up the right to take action against them to stop it. Ever.

I feel bad about this.  My wife and kids (and lots of other friends and teens and tweens I know) are making great creative use of the Instagram service. They are developing into wonderful photographers, cultural commentators and editors, they are keeping in contact, and knitting a community together. It does have real value.

But I can’t pull the trigger to post images myself. I object to the one-sidedness of the service terms, and my total lack of leverage in the event it gets even worse. I hope that the Internet looks at these terms and gets mad again, but I fear that it has been totally faked out, and this won’t happen.


And, it should be said, I’m not a lawyer (although Lord knows, I like to argue). So maybe my analysis here is off-base. But I do have 30 years experience negotiating my own IP contracts for photography, and there’s one thing I have learned. When someone puts something in a contract and then says, “We never intend to use that, it’s just something the lawyers did,” they are probably not telling the truth.