Facebook and Instagram: "Your photos are our photos"
Yesterday Instagram, the photo-service company recently acquired by Facebook, said that under their new intellectual property policy it has the perpetual right to sell users’ photographs without payment or notification. This is a controversial policy shift, which has left Facebook users indignant.
The new IP-policy goes into force on January 16th, and leaves no space for an opt-out. Therefore, the only option left for Instagram users is to delete their Instagram account before that time, in order to prevent Facebook from acquiring these rights over their photos. No comments from Facebook on this issue have been made public so far. We hope they will clarify what effects and implications the new policy will have for their users shortly. Instagram on the other hand says on their blog that “Nothing has changed about your photos’ ownership or who can see them”. Arguably, Instagram’s policy does not extent to claiming copyright over the photos. However, there is a distinct difference between ‘ownership’ and ‘use’. While copyright covers the ownership of the work, Instagram is in fact collecting a never-ending license on the use of the copyrighted images, allowing them to do whatever they like with the pictures. In addition, by leaving no opt-out option, Instagram uses their terms and conditions to tie their users down.
Users might not be aware of the fact that three legally distinct aspects are now being blurred by the social network. Having the copyright to photos and giving out licenses for the use of that work are two different things. Furthermore, a social network or any other service may require users to agree with a user agreement before participating in the platform. In this case, users have to be aware of both their user agreement with Instagram and the one with Facebook.
The legitimacy of the amended terms and conditions of Instagram can be questioned. Kurt Opsahl, senior staff attorney at the UK Electronic Frontier Foundation says "It's asking people to agree to unspecified future commercial use of their photos, that makes it challenging for someone to give informed consent to that deal." Indeed, by agreeing with the terms and condition, users seem to provide to the photo platform an infinite license. In addition to complications with consent to such a license, Instagram’s new policy could be in conflict with privacy regulations. For example, many photos contain recognizable images of people, which might not be aware of Facebook’s ‘perpetual’ right to use or sell these photographs.
To protect itself from liability issues regarding privacy regulations, Instagram inserted liability-exception provisions in its new policy; "we will not be liable for any use or disclosure of content" and "Instagram will not be liable for any use or disclosure of any content you provide." While the new policy does not necessarily mean that Facebook and Instagram will monetize their users’ photos, it does seem likely they have deliberately created this opening.
Future of Copyright will keep a close eye on these developments. Feel free to share your thoughts on the matter by leaving a comment below. To read more about related topics on Future of Copyright, click on the following links:
Sources: Cnet.com, Instagram Blog
Written by: Nathalie Falot
Comments(1)
Future Of Copyright
UPDATE:
Instagram has given a statement on their blog after all the commotion about their new terms. In short:
"As we review your feedback and stories in the press, we’re going to modify specific parts of the terms to make it more clear what will happen with your photos." Additionally, Instragram states that "To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear."
To read their full statement, follow this link: http://blog.instagram.com/post/38252135408/thank-you-and-were-listening
Your comment