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What you need to know: Instagram’s new terms of service

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Instagram's new Privacy Police and Terms of Service clarifies its rights to user's images.

Everyone from CNET to the BBC is freaking out today about Instagram’s new terms of service. The new terms, they claim, allow Instagram to sell user’s images. 

Users are understandably upset. Wired published a tutorial on how to download all of your Instagram photos and delete your account. But long-time Instagram users should think twice before pulling the trigger.

The truth is that Instagram has always claimed full rights to your images. The old terms of service had a giant, 75-word sentence explaining that Instagram has full rights to the images that users share publicly:

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 new privacy policy breaks down this sentence into a clearer, 51-word sentence with terms like “us” and “you”—phrasing that is much easier to understand -- though the new statement certainly calls out the sale of users' photos:

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.

Instagram’s own blog writes that “nothing has changed about your photos’ ownership or who can see them.” That’s right, you have always given away your rights to your photos, Instagram is now just being more transparent about it.

What users should be concerned about in the new terms is the integration of unlabeled advertisements. The new terms state that Instagram doesn’t have to identify paid services:

Some or all of the Service may be supported by advertising revenue. […]You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

Instagram claims on its blog that the new terms of service will also help “fight spam more effectively.” The new spam policy expands Instagram's previous anti-spam terms which were limited to unwanted email and comments. The latest provision is broader, incorporating  “other forms of commercial or harassing communications”—hopefully covering all the accounts that “like” dozens of your photos, follow you and hide the scam in their own profile description or photos.

The new privacy policy also includes instructions on how to report copyright violators because while Instagram may claim full rights, no one else can swipe your photo without your permission.

Along with its reformed terms of use, Instagram includes a disclaimer of warranties, limited liability waiver, and details on indemnification, arbitration, time limitation on claims, governing law and venue, and territorial restrictions.

Read Instagram’s full terms of service here.

Comments

Total comments: 58
mauro paillex
By mauro paillex (Dec 25, 2012)

You are not obliged to share your pictures!!

0 upvotes
KodaChrome25
By KodaChrome25 (Dec 25, 2012)

People, this is all smoke and mirrors. The part of the ToS they're hiding with this smokescreen is that you can't sue them. So no matter what they do, you have no recourse.

0 upvotes
Rage Joe
By Rage Joe (Dec 20, 2012)

Instagram seems to be made of pure BS. They are just thieves.

0 upvotes
rondhamalam
By rondhamalam (Dec 19, 2012)

But still, hidden in the wording...
http://www.dailymail.co.uk/sciencetech/article-2250443/Backlash-grows-Instagram-vows-water-terms-service--admits-WILL-use-profile-picture-ads.html

1 upvote
Doug Pardee
By Doug Pardee (Dec 18, 2012)

Instagram's Kevin Systrom has responded:

"it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language...

"The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question. ..."

"Nothing has changed about the control you have over who can see your photos. If you set your photos to private, Instagram only shares your photos with the people you’ve approved to follow you. ...

"Please stay tuned for updates coming soon."

Ref: http://blog.instagram.com/post/38252135408/thank-you-and-were-listening

0 upvotes
SantaFeBill
By SantaFeBill (Dec 19, 2012)

What's confusing about "without any compensation to you"?
But I think they may have realized they made a mistake, and are looking for a way to back down.

1 upvote
Rage Joe
By Rage Joe (Dec 20, 2012)

"without any compensation to you"

Now that's a hard one. What in the world could that mean?

1 upvote
t_ramoska
By t_ramoska (Dec 18, 2012)

Who wants to buy this crap. Images of breakfast and coffee mugs damaged by Instagram filters lol...

8 upvotes
SantaFeBill
By SantaFeBill (Dec 18, 2012)

The DPR analysis of the new terms vs. the old is just incorrect. It overlooks the explicit grant in the new terms to _sell_ your images. As another poster pointed out, the old terms were somewhat ambiguous on this point. Even more importantly, the new terms _remove_ the restriction on to content declared private or non-public. Under the new terms, _even_ content declared 'private' by the OP can be sold by Facebook.
Another nice goodie in their terms of use is this disclaimer: "None of your Content will be subject to any obligation of confidence on the part of Instagram, and Instagram will not be liable for any use or disclosure of any Content you provide."
N.B.: "ANY use". They can sell your photos to a porn site if they choose.
Read the entire terms, and then decide if you want to use them, even if they back off the 'we can sell your stuff w.o. paying you' bit.

4 upvotes
Raist3d
By Raist3d (Dec 18, 2012)

Hey dpreview- so if their terms before were the same it doesnt make it any more ok. You make it aound like just because it was phrased differebtly before its ok. No, its not- you are hust daying it never was.

So glad I never posted any pics there.

3 upvotes
Raist3d
By Raist3d (Dec 18, 2012)

Sorry for the typos

0 upvotes
davidib17
By davidib17 (Dec 18, 2012)

they weren't gonna take any of your photos, I guarantee it, haha.

1 upvote
Raist3d
By Raist3d (Dec 19, 2012)

@david- only because i dont have any on instagram. Lol. A cursory look towards any gallery or link from you comes empty so thats all the "credentials" i need to know you are not qualified to make that call. Lol.

1 upvote
dodgebaena
By dodgebaena (Dec 18, 2012)

It was only a matter of time before Facebook needed to make money on its $1B investment. They should gave waited longer to harvest more photos. Not bad for a glorified $1.99 app.
I've never used Instagram and I never will.

3 upvotes
Oliver Lang
By Oliver Lang (Dec 19, 2012)

Instagram has always been a free app, not that there's such a thing as a free lunch.

0 upvotes
SantaFeBill
By SantaFeBill (Dec 18, 2012)

Wonder how long before lawsuits start over some photo of someone's attractive wife/daughter/girlfriend showing up in a come-on for a men's magazine, I'd hope that the person or persons bringing the suits could wring Facebook dry (as in shut the doors) for invasion of privacy, as I'm not sure that any agreement for unlimited use would protect against invasion of privacy of a non-public figure. (If you're a Ms. K. it's different of course.)

0 upvotes
CameraLabTester
By CameraLabTester (Dec 18, 2012)

The new TOS serves a good thing...

It sifts out the chaff from the grain.

The grain leaves, and the chaff remain.

.

8 upvotes
plasnu
By plasnu (Dec 18, 2012)

Account deleted.

4 upvotes
Teddy
By Teddy (Dec 18, 2012)

Backup, and delete account:

http://howto.cnet.com/8301-11310_39-57559810-285/how-to-back-up-your-instagram-photos-and-delete-your-account/

1 upvote
Teddy
By Teddy (Dec 18, 2012)

http://www.forbes.com/sites/limyunghui/2012/12/18/export-instagram-photos-a-few-good-tools/

0 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

When pressed for an explaination, many of the services claim they need the right to publish the image in order to achieve the normal operation of the site.

I've been on four sides of the image usage relationship: photo lab printer, copy technician, photo buyer for a publication and as the photographer and copyright holder of the image.

As a printer and copy tech. all I needed was proof of permission to reproduce the image. I did not want to be party to unauthorized reproduction.

As a photo buyer, usage agreements clearly defined how the images would be used, number of imprints and for how long. Payment was made accordingly.

facebook and friends do not need unlimited usage in order to post the content in the manner the user intended. All that is needed is proof the user has permission to use and publish the content. The do not need unlimited usage rights to protect themselves from liability.They just want free access to content they can sell for profit.

4 upvotes
bcalkins
By bcalkins (Dec 18, 2012)

Instagram should add "Terms of Service" as a new reason for deleting an account :)

1 upvote
chiumeister
By chiumeister (Dec 18, 2012)

Just watermark everything you post on Instagram and other sites.

1 upvote
stewf
By stewf (Dec 18, 2012)

Yuck.

2 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

Watermarking is like branding your beautiful wife's face so other men won't look at her.

2 upvotes
graybalanced
By graybalanced (Dec 19, 2012)

With today's healing/retouching software it has never been easier or faster to remove a watermark. Then the only thing stopping them is the terms you agreed to...d'oh!

0 upvotes
Peter K Burian
By Peter K Burian (Dec 18, 2012)

It amazes me that a company like this would have the nerve to try this. Granted, 95% of the photos are snapshots but that is not the point.

2 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

Good point. The quality of the images does not alter the matter of ownership and copyright. If we allow this to slide, then we are opening the door to more aggregious rights grabs.

Still, I might say that I have seen some very good...and marketable, content posted on other sites that are subject to the same terms.

0 upvotes
Digitall
By Digitall (Dec 18, 2012)

I have some photos on Instagram, and I believe that Instagram dont make any money with them, they are ugly, blurred, inclined skylines, and colors are highly far from reality, Just take pictures of cats, flowers and sunsets and at my feet. Who in the right mind is going to buy my photos? :(
Anyway I'll delete the account from Instagram.

Comment edited 2 times, last edit 3 minutes after posting
3 upvotes
whyamihere
By whyamihere (Dec 18, 2012)

I'm thoroughly enjoying the public freakout now that the legal language that has represented this service (and others) is being phrased in terms that normal people can understand.

Since it's part of my job to read the complete ToS for many apps and services, none of this is surprising at all to me.

One of these days, you'll all learn to read the agreements instead of hastily clicking the 'I Agree' or 'Ok' button. In this case, any service that offers to relocate your data for ease of access reserves the right to use, change, or delete your data. It's still yours, but you don't have as much control over what happens to it once that data hits their servers without their consent. That's how it works, and that's how it has always worked.

1 upvote
SantaFeBill
By SantaFeBill (Dec 18, 2012)

I'm not sure that 'any service' reserves these rights. If you see a post by Malch (sp?) alerting us to this policy, he also says that Yahoo tired this some years ago and then backed off in face of protests. In any case, this is why I don't relocate any data - unless that includes e-mail, which I long ago assumed was fair game - to any on-line service. I would say esp. photos or any writing I care about.
They stay on my computer, with good sw and hw firewall protection. I'd _never_ use an on-line backup service.

0 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

Most individuals do not understand copyrights and usage agreement. They don't realize that photographers can grant all kinds of usage agreements from very specifically defined restrictive single use agreements to unlimited agreements that allow the client to publish anywhere with no time limitation.

Even the unlimited usage agreement does not normally grant the client the right to sell or relicense the image to a third party.

The typical ToS agreement goes above and beyond what is required by the service to publish and archive the content. They claim the right to relicense the content but to what end? Why else would they need that right other than to acquire free access to content that they can relicense for profit?

Anyone who has ever had to write a usage contract should be able to understand the terms in ToS contracts..if they would only take the time to read them.

0 upvotes
Lisa O
By Lisa O (Dec 18, 2012)

I'm deleting my account before that date. Shame on Facebook and Instagram for abusing the rights of photographers and creatives and taking advantage of their large social network base. They will learn, they will probably lose half their members by doing this. Anyone who cares about their photography will not allow this.

4 upvotes
xlynx9
By xlynx9 (Dec 18, 2012)

Most online services have similar clauses. They're just to allow for screenshots of the site/app to be used in promotional material, magazines etc.

0 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

I make a portion of my photography income by selling the usage rights of my images to be used in promotional material, magazines, etc.

I would be happy if facebook used one of my images in their promotions, as long as they pay the appropriate usage fee for the type and circulation size. Facebook is a business and they should pay for any images they use for the promotion of their business like any other busienss would.

2 upvotes
frankmv
By frankmv (Dec 18, 2012)

Never opened an account with Instagram...and now I never will. Further, I've deleted the app from my iPhone. I'll take a much harder look at Flickr and other similar social media (read "sharing") sites. I may just swear off them all...

6 upvotes
Franka T.L.
By Franka T.L. (Dec 18, 2012)

well well, so much for the social aspect of sharing ... its quite clearly no longer sharing any more with this , in any case I never did like instagram; the old guys like flickr at the very least , and from the start stated the rights will always remain with the originator

2 upvotes
Dvlee
By Dvlee (Dec 18, 2012)

@ Franka T L...You might want to take another look at filckr's ToS. Saying they do not claim owneship of the copyright is not the same thing as not claiming unrestricted usage of the image.

Many sites make that claim, but effectively claim all the rights that a copyright provides, except exclusivity.

There is another term for what they claim: "unlimited usage" Unlimited usage does not transfer the copyright to the buyer , it just allows them to use it in any way, for as long as they want, including reselling the image.

But even with unlimited usage, the photographer still retains the right to license or sell the image to other parties. The photographer still retains ownership, but allows the other party to relicense or use the image in a manner outside of what is required for the operation of the site.

What these ToS agreements are claiming is unlimited usage, but not ownership of the copyright. But for all intents and purposes, they own the image.

Comment edited 1 minute after posting
0 upvotes
danmar
By danmar (Dec 19, 2012)

"Unlimited usage does not transfer the copyright to the buyer" In other words, copyright means nothing. One might accept that this state of affairs was common in Dickens' time but in what way have we progressed on social justice. That so many people have egos so large that they don't mind losing their rights for the privilege of exposing themselves in public is quite telling if you ask me. (and even if you don't)

Comment edited 32 seconds after posting
0 upvotes
dsjtecserv
By dsjtecserv (Dec 18, 2012)

As Karl and szedman point out, this analysis is incorrect. The previous TOS was similar to that of other photo sharing sites and does not grant a license for the host to do anything not connected with the job of displaying the pictures, as necessary to provide the hosting service. The new TOS would go well beyond that to permit commercial use of the photos without compensation or notice to the artist -- that is, clearly usage beyond that which is necessary to simply provide the hosting service. That's different, and it justifiably has caused considerable concern.

Comment edited 1 minute after posting
1 upvote
klopus
By klopus (Dec 18, 2012)

Breaking News: "It turns out there's no free lunch (and never actually was)!"

I bet majority of those who freak out most about FB/IG possibly monetizing their images to sustain a free popular service are the ones who never ever sold a single image.

Another group are probably those who raise all up in arms to defend piracy of intellectual property provided it's somebody's else and not their own.

0 upvotes
Doug Pardee
By Doug Pardee (Dec 18, 2012)

I dunno. I find it hard to see the similarities between the two. The old terms said that you expected them to publicly display your non-private photos and gave them the rights necessary to do so. The new terms says that you give them the right to sell your public and private photos without paying you.

Where in the old terms does one find "may pay us"? Where in the new terms does one find "except Content not shared publicly"?

I've been on Streamzoo for a while. Their T&Cs say, "All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Company or affiliated third party partners without consent from the user ." I'm killing my Instagram account.

1 upvote
whyamihere
By whyamihere (Dec 18, 2012)

Actually, if you re-read the part where it says in the original Instagram ToS: "[Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license..." that means, "We can reproduce your work without paying you because you waved your rights by agreeing to our terms of use."

0 upvotes
bryPT
By bryPT (Dec 18, 2012)

Deleted as well.

2 upvotes
Threlly
By Threlly (Dec 18, 2012)

Deleted my account today.
Plenty of other services in the sea.

2 upvotes
Karl Gnter Wnsch
By Karl Gnter Wnsch (Dec 18, 2012)

The problem is the newly granted right to sublicense without compensation to you. You (dpreview that is) should compare the license agreements again, the previous rights are necessary to operate a service like Instagram, the new ones go far beyond what is necessary. If I were a DPreview regular previously using Instagram I'd scramble to pull all my content of their site. Fast!

2 upvotes
spidermoon
By spidermoon (Dec 18, 2012)

"All your base are belong to us"
Well, i guess that with a tremendous 12 like for my best worst pic, there is some money for instabook to make ;)

1 upvote
Sannaborjeson
By Sannaborjeson (Dec 18, 2012)

Well, my little vintage photo lovers.
Time to switch back to Lightroom + reallyniceimages.com + flickr.com

Insta has got to much facebook in it...

7 upvotes
paulbysea
By paulbysea (Dec 18, 2012)

This is why I post very few to no pictures on line.
In future I will be watermarking my pictures so they can't be used on another site, ie pics on FB will be marked for use on FB profile only . Legally this will have not standing I realise, but FB won't want to use a pic watermarked this way.

0 upvotes
szedman
By szedman (Dec 18, 2012)

The author's characterization that the new language simply makes more transparent the rights they already claimed in their old agreement language is NOT accurate. The old language is vague in ways that make it difficult for them to use or commercialize the photos outside the context of their existence as uploaded photos on instagram. They could try to commercialize/monetize them in other ways, but it would invite a class action they could very well lose, based on the vagueness of the agreement. The new agreement language is much more specific -- spelling out how they can commercialize and monetize the photos in specific ways. No vagueness and therefore no worries about a class action. It absolutely expands their ability to commercialize and make money from your photos.

2 upvotes
whyamihere
By whyamihere (Dec 18, 2012)

In a word: Nope.

The old language is 'legal terms' whereas the new language is 'plain language'. It still means the same thing. I've read more than my fair share of ToS agreements, and there's little to differentiate what is said between the two versions other than you don't have to understand the implications of specific legal language to understand the new version. That you can understand the new ToS but not the old doesn't mean it's different: It means you read it wrong.

On the whole, this isn't terribly different than agreeing to the ToS for using cloud storage or music download services or Steam games (where at least Steam comes out and says in their ToS, "You may have paid money for this software, but you don't own it and we reserve the right to revoke your license.") You're volunteering information, and they have the right to re-use it to make money because no internet service comes free... unless you want to pay for Instagram.

1 upvote
vv50
By vv50 (Dec 18, 2012)

what's the difference between instagram's policies on your images and those of facebook's?

0 upvotes
Lauren Crabbe
By Lauren Crabbe (Dec 18, 2012)

Facebook says that "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)." Basically the same as Instagram.

0 upvotes
kzo0
By kzo0 (Dec 18, 2012)

Twitters policies don't seem to differ much too:
"By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)."

0 upvotes
Richard Butler
By Richard Butler (Dec 18, 2012)

kzo0 - you'll find those words in the T&Cs of just about every website that has got someone with legal training to draft them. It's essentially describing the rights you need to assign to a website for them to be able to host your image.

1 upvote
papparazzi
By papparazzi (Dec 18, 2012)

Instagram no more!

4 upvotes
Dsnoir
By Dsnoir (Dec 18, 2012)

But surely the BBC has the right to seconde your copyrite in its terms and conditions - perhaps we should all be as upset about them as Instagram

0 upvotes
graybalanced
By graybalanced (Dec 19, 2012)

The difference was that Instagram's were a little more explicit about the monetization aspect. R Butler is correct...the license language quoted above appears in probably every site you ever uploaded a pic to, even the ones you think are "not evil." Because it's necessary if you want them to put copies of your images on servers and web browsers worldwide, the entire point of what you do when you upload.

1 upvote
Total comments: 58
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