No, what Instagram just did to its users is not acceptable

No, what Instagram just did to its users is not acceptable

Summary: There is a tendency among tech watchers to think that, when it comes to free services, everyone should accept that they are the product and, as such, exploitable. This is a road we can and should avoid going down.


Instagram has some nerve. In case you missed it, the Facebook subsidiary has unveiled new terms of service that give it the right to put users' photos into ads and even sublicense them to third parties. Don't like it? Take a hike by 16 January, or stop complaining.

It's Instagram's way or the highway. Image via CNET

This has got me thinking (through a red mental mist) about several issues, about copyright, about the nature of free online services, and about what is fair in this day and age.

First things first. Many people have been deeply suspicious of Instagram since Facebook bought it for $1bn. Instagram is a company with a massive number of users uploading a massive amount of data. It must be pretty expensive to run. And it doesn't make any money. Again, $1bn. Yeah.

Earlier this month, Instagram withdrew the ability for users to integrate their pictures into Twitter cards. At this point, my reaction read thusly:

And so I slightly surprised myself by getting very, very angry this morning upon reading a Gizmodo article entitled Stop Whining About Your Personal Data on Instagram You Little Whiny Baby. An article that rips into its readers for being so incredibly stupid as to be concerned about a billion-dollar company taking — under powers granted to them by the magic language of Legalese — the intellectual property that they, the users, have created.

Upon reflection, here's why I got angry. When Instagram broke up with Twitter, that inconvenienced the users more than anything else. It was a gamble: it was Instagram saying that its true value lies in its community and that, if nudged, the community would come directly to Instagram's platform rather than use Twitter as the entry point.

This, on the other hand, is exploitation, pure and simple. The blog post in which Instagram announced its new terms of service does not actually say what the new terms entail. Indeed, you'd have to click through, then understand the legalese, to parse what is actually going to be done with your content. This stuff is designed to go over people's heads.

But but but, people say, it's free! What do you expect from a free service? You are the product!

The heck with that. Firstly, there is a concept known as bait-and-switch. It is a bad thing, and it is kind of what Instagram is doing here: draw people in on one premise, then exploit them on another. We should never get to a point where this is acceptable. Why not? Let me put this in bold:

Because most people are not industry-watchers. They are not technologists. They are not start-ups or VCs. They are ordinary people, and exploiting them based on what you know they won't understand is NOT OK.

Secondly, we know that this can be done in a more honest fashion. Look at Flickr, for example, which makes it easy for users to have their photos licensed for reuse through Getty — SoundCloud has a similar deal with Getty for audio clips. The exact terms may not be to everyone's liking, but they do involve the user who came up with the content getting paid.

It's like saying an amateur songwriter who puts their latest awful ditty online should not complain when a corporation sticks it in an advert without payment

But the real reason for me getting angry at the Gizmodo piece lies in the section entitled 'Stop caring about your dumb photos'. No, no and again no. Most Instagram photos may be rubbish, but that doesn't mean they are without value. That's like saying an amateur songwriter who puts their latest awful ditty online should not complain when a corporation comes along and sticks it in an advert without credit nor payment.

I believe very strongly that it should be permissible for content to be reused in certain contexts for free and without permission — parody and other fair uses spring to mind. I even think there's a case for saying personal use is fair use. But, time for bold type again:

Fair use does not include corporations making money off people's content without paying them, or at least giving them proper notice that's prominent and easy to understand.

People should get angry at what Instagram has done, because of the value of what they have created, and because of the principles that are at stake. I'm all for sharing — indeed, I think the whole concept of copyright should be up for debate — but I cannot find anything acceptable in bait-and-switch, nor in exploiting semi-personal content for commercial gain, without payment or truly fair warning.

So yes, beware start-ups that have lots of users, no business model and sky-high valuations. But don't ever think that that state of affairs means — excuse the pun — a licence to do what they like. Sure, the customers are free to leave, but most of those customers won't know or understand what has changed and how they are being taken advantage of. That can never be acceptable.

Topics: Privacy, Social Enterprise

David Meyer

About David Meyer

David Meyer is a freelance technology journalist. He fell into journalism when he realised his musical career wouldn't pay the bills. David's main focus is on communications, as well as internet technologies, regulation and mobile devices.

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.


Log in or register to join the discussion
  • IP

    IP is obviously only for huge businesses and patent trolls. No one should complain when their property is confiscated by such. (Sarcasm, yes. Also, it is "no one" and not "noone." Noone just looks stupid.)

    Personally, I do not use any of these services just because of this kind of nonsense, database building spies and all the rest.
    • The CLOUD strikes again.

      This really is getting sick.

      I love the dolts around here who tout the virtues of the cloud because “it facilitates collaboration!!”

      Big hairy deal.

      How did we ever live without cloud based collaboration before it arrived? God only knows because we are now expected to sell our souls to work within the cloud so collaboration can be easily facilitated? Is that the idea?

      Look, the cloud is so much more than the facilitation of collaboration. Online collaboration can be done and could be done with onboard applications, but NOOOOOoooo!!!! We cant do that now can we. That would be thwarting the cloud.

      The cloud is many many things, and any service that says come store your “X” in our cloud is part of the cloud and part of the problem. The whole scheme is being developed to let the unsuspecting fools in the public who actually believe that there is something for nothing to be found in this world to feel free to give up their onboard storage, and for some complete idiots their entire computer in favor of some lightweight no capacity piece of trash that will send everything they digitally own to the cloud, because god knows they have no decent sized HD to store it on anymore, and at some point SELL what people have stored, or begin charging them at some point to get access to it!

      There are only TWO, count ‘em, TWO ways the cloud can work as something that ‘looks’ free today. And those TWO ways are to either sell what you give to the cloud or eventually start charging you to get at what you have stored in the cloud. That’s it. In one twisted way or another, that’s what it will boil down to if you appear to be getting something from the cloud services today that looks free and easy.

      The cloud is actually nothing more and nothing less than a trap. It’s a trap for both the unsavvy and for the savvy who are simply insider morons who value being on the bleeding edge more than reasonable foresight as to where they are headed. Anyone who has ever put a rational thought into this whole push to the cloud should have seen where this was and is going.

      It’s a push by all software, media, and to a much lesser degree, even some hardware companies to protect their IP and to find new ways to drive revenue. How does this work? Easy.

      Gradually convince the entire population of the world (that’s why it can only be gradually) that they no longer need a real computer. You start by getting rid of their hard drive. That’s where the headache starts for software and media companies because that’s where all things digital can be stored. All kinds and sorts of programs, songs, movies, videos, pictures and all sorts and kinds of text can be stored easily, and with the inherent power of a computer can be manipulated and stored even when gotten through less than reputable means. This is a living nightmare for software and media producers. The computer as it exists today is their enemy, the hard drive is their enemies warehouse. If you get rid of the warehouse, the enemy will cease to exist, it will have to devolve into something else.

      There will still have to be a warehouse to store the products, you just don’t want it in your enemies hands. Just think, if you have control over the enemies warehouse, you dictate what goes in there. No more illicit products for one thing. Only products they purchase from you will go in. Or, products they may produce their self. If they want to use your warehouse to hold their products because they don’t have a warehouse of their own….well! They are going to have to either let you rent out their stuff, or pay you to store it sooner or later.

      If you can make this work, as unbelievable a scenario as that may seem, after awhile, you will have just about everything there is to be had in your possession and the outsiders will actually hold nothing of their own, or what little they can store on their own will be in a warehouse whos access points you control. You have won.

      How in the world do you ever get the entire world to buy into this?? Answer:

      You call it something nice and fluffy like “The Cloud”, then you show how it firstly can be used for what seems to be free and be sure to convince enough of the “EXPERTS” that this is a good thing, and once enough of the world has given up control to “The Cloud”…bingo. Its done.

      That will be the true post PC era. That will be big brother and that will not be as good as it was without the cloud.
  • IP

    IP is obviously only for huge businesses and patent trolls. No one should complain when their property is confiscated by such. (Sarcasm, yes. Also, it is "no one" and not "noone." Noone just looks stupid.)

    Personally, I do not use any of these services just because of this kind of nonsense, database building spies and all the rest.
  • Tweet

    Your Tweet is so true. If a service isn't compelling enough to get paid users, the only alternative is to resort to some customer-unfriendly monetization strategy. And will lead eventually lead to a burst of this tech bubble.
    beau parisi
  • Well Put

    ... and of course, we announce it just before Christmas when few people have time to pay attention (or will be distracted soon thereafter), and give people a couple weeks after New Year's before it's over.
  • I almost want to...

    ...create an Instagram account just so I can cancel it on January 16.

    But just think of the hilarity that ensues when the pictures you posted of your good buddy at a bar or game suddenly appear in penis pill ads targeted to you specifically. I doubt very much that some art student interns are going to be combing through billions of family picnic photos to find the odd gem that can be resold: this is going to be used to engineer more targeted advertising to sell you crap you don't need (well, maybe not want..some probably need those penis pills).
  • Make sure they do understand

    Spread the news far and wide. If you don't like the terms, then vote with your feet, but you're under no obligation to go quietly.
    John L. Ries
  • The Solution

    Here's the solution to all your problems with Instagram, Twitter, Facebook, Google or any other website that claims ownership of content YOU created:

    Remove all your content, then terminate your use of that service.

    Follow-up by making sure you tell everyone you know that you no longer use the website, and why.

    Complaining doesn't help0; these firms are in it for the money, and your complaint doesn't really cost them a thing.

    So stop supporting them.
    • Ringht on the Money!

      However, if you are stupid enough to put ANYTHING of value online for the world to see (and use!), Don't blame Facebook, Twitter, Instagram, or any other invasion of privacy when someone in the guise of "National Security" knocks on your door.
  • Deleted

    I had gotten Instagram as it sounded interested, luckily I never had time to even try it. I have deleted it from my iPad and iPhone and expect many others to follow, as soon as they are able to remove all of their photos.
  • Perhaps we should be blaming Facebook

    None of this happened until Facebook showed interest in the company and subsequently bought it. Facebook is already notorious for hosing their users repeatedly. Privacy abusers should be prosecuted. Stealing the work of others just because it's stored on your servers is even worse.
    • Don't want your stuff stolen?

      Don't post anything on Facebook or anywhere else. Your complaining about this? And not paying a cent for using FB? READ the EULA.....for once. I have only two pictures on my FB account, nothing that anyone would dare try to make money off of. If someone does make anything off of them, I congratulate them for business savvy. Don't like the way the rules are written (that you supposedly read and accepted and/or if changed read and accepted)----go away!
    • Built to sell

      Instagram as a business model was designed to sell from its very inception. The founder of the company is culpable of any resulting backlash.
  • Monetize this
    Instagram - do the right thing or we will take our attention elsewhere. It is not really that hard.
    • OK, now define what

      the "right thing" is....paying YOU for use of your pics? They won't. Advise you that these changes are coming and are permanent. They did. You stick around after the cutoff date, that means YOU didn't do the right thing. Whatever "doing the right thing" means.....
  • It starts with one company, then others will follow....

    It they can do this and get away with this it could it not put the whole idea of cloud storage into question. What's stopping other IPs saying we're going to sell the data you're storing on 'our' servers? Could they? Like sheep, would the follow if they could gain from it and get away with it ?
  • Why would you even use instagram anyways?

    I do not see the point of instagram at all?

    I just have my photo's on Skydrive and if I have never felt the need to use filters to make them crappier althoug I am certain that a ton of app provide those features.
  • Why the outcry now?

    AutoDesk has a similar clause in their 360 service:

    Autodesk 360 Terms of Service (rev. 9/6/2011)
    2.Proprietary Rights
    2.1 Your Rights. As between You and Autodesk, and subject to Section 2.2 (License by You; Disclosure), You and Your licensors have and will own all right, title, and interest in and to Your Content.
    2.2 License by You; Disclosure. Autodesk (or its sublicensees) may exercise the license set forth in this Section only for purposes of providing, maintaining, repairing, protecting, organizing or otherwise administering the Service and Service Site in the ordinary course of Autodesk’s (or its designated third parties’) provision of the Service and improving and modifying the Service, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of Your Content and information, and to disclose Your Content and information and the results of any such analysis in aggregated form or any other form that does not specifically identify You or the source of Your Content or information. Notwithstanding anything in these Terms to the contrary, You hereby grant Autodesk (or warrant that the licensor of such rights has expressly granted) a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable (through multiple tiers) license to store, display, reproduce, modify, use and transmit Your Content, and further waive “moral” rights or other rights with respect to attribution of authorship or integrity of Your Content that You may have under any applicable law and under any legal theory. In addition, You acknowledge and agree that Autodesk may disclose Your Content to provide the Service to You (including, without limitation, Your election to share Your Content under Sections 3.3 and 3.4), to comply with any legal obligations or governmental or regulatory body request (including subpoenas or court orders) or as part of a legal proceeding involving Autodesk Parties."

    In this case, they even claim the right to be able to sell your work to your competitors without compensating you or crediting you and you have no legal recourse under the TOS.

    Yes, I know Instagram is bigger, which is why there is an uproar now, but it has been going on for a while in the cloud computing world, which is why we need to put a stop to these things NOW.
    • Very different

      That Autodesk licence is pretty typical of online storage services. Technically, any copy (like a backup) or modification (like a compression) requires a license to be used on copyrighted material. So they're basically just covering their butts -- you give them that license before they'll store your content. They explicitly state that it only applies to things they do in service to your online account.

      What Instagram is claiming is entirely different. I have not read the whole new agreement yet, but basically, they're claiming a non-exclusive and certainly perpetual (eg you see your content in an ad, quit immediately and plan to sue, they still have the right to use that content) license to any image you upload.

      I suppose your best defense, other than quitting In stage am (certainly a fine option) is uploading only low quality images. So the content they get is not all that useful. Though I bet, given their new interest, the app will be trying to get the highest quality possible, and controlling it might take away the "insta" part of the process.
    • It's possible...

      ...that nobody bothered to loudly object to the Autodesk terms, so most people didn't notice and didn't hear about them. But it doesn't follow that because Autodesk has been allowed to get away with imposing such terms, that nobody should object to others doing so as well.
      John L. Ries