

Class action lawsuit against Instagram - dangoldin
http://mashable.com/2012/12/24/instagram-lawsuit/

======
jacquesm
Another word for lawsuits like these is 'blackmail'. You're big enough so pay
up or we'll sue.

If you use a free service the way to seek redress unless they've already gone
and used your content in a way that you disagree with (and that would
definitely not be a class action suit) is to vote with your feet.

Instagram sucks, their policies suck and now that they're owned by FaceBook
they suck even more. But that doesn't mean that suing them for providing a
free service makes sense.

When you're a company that is visible lawsuits like these (or at least their
announcements) are part and parcel of doing business in the United States.
This goes so far that the CEO of a multinational that I know that has an
operating arm in the United States whereas the parent company is located in
Switzerland told me that they just count this as a cost of doing business in
the United States.

In their case their products were simply a bit more expensive in the US
because of the hostile legal climate. In the case of FaceBook it means that
the legal team costs are being taken out of the shareholders pockets or that
the ads are a bit more expensive than they need to be.

In the end this is a zero-sum wealth reallocation scheme with a blackmail and
a lottery component thrown in.

The lawyers that take these kind of cases are the business world equivalent of
ambulance chasers.

~~~
rayiner
You're so off it's not even funny.

First, it's wholly incorrect to characterize this as a suit over a free
service. Instagram is a for profit business and its users traded valuable
personal information in return for Instagram's service.

Second, "voting with your feet" is what you do a priori. This suit involves
people who already have a relationship with Instagram, have already shared
their personal information, and are asserting that Instagram's new policies
violate the understanding of the original transaction.

Third, yes lawsuits are a "cost of doing business" in the U.S. but comparing
it to Switzerland is comparing apples and oranges. The Swiss have far more
regulation and government oversight of companies than in the U.S. European
countries in general set detailed standards and guidelines for consumer
products and services, while the U.S. prefers to handle such things through
litigation.

~~~
jacquesm
> You're so off it's not even funny.

Nothing you wrote contradicts a single word I wrote.

Whether instagram is for profit or not has nothing to do with their agreement
with their users. Copyright applies, no matter whether you upload your data to
a free service or to a paid one. In the case of instagram, part of your
'payment' is that you sign away rights. If you're not comfortable with that
then you should not use their service (I'm not, and I don't. Ditto FaceBook).

As far as the users are concerned instagram is a free service. If you wish to
redefine the word free in creative, new and exciting ways then you'll be
having a very interesting conversation, but mostly with yourself. We define
words in a certain way so that we can have a meaningful conversation.
Instagram is a free service by the generally accepted definition of the word
free.

On their homepage they write:

    
    
      "Oh yeah, did we mention it’s free?"
    

It seems as though your not in agreement with that, maybe you are talking
about a different company, the one I'm talking about lives at
<http://www.instagram.com/> and does not have a paid program.

> Second, "voting with your feet" is what you do a priori. This suit involves
> people who already have a relationship with Instagram, have already shared
> their personal information, and are asserting that Instagram's new policies
> violate the understanding of the original transaction.

Yes, so they now have the option to remove their data from the service and to
deny instagram the right to the use of that data. If they continue to use it
(and I think that this is where there is a very subtle point of law involved,
which is that you can't just retro-actively change the terms of service and
claim that if people don't remove their data that they are accepting your new
terms of service) then they are implicitly in agreement with the new terms.
Obviously, there are some cases where this will lead to trouble:

\- people won't re-read the terms past the point where they originally signed
up on the off-chance that someone pulled a bait and switch (instagram
specifically prompts you in their terms-of-service to review the terms
periodically for changes)

\- people may be incapacitated (or even dead) (instagram has a process for
dealing with that)

\- such retro-active changes may be illegal depending on the jurisdiction (but
adding a clause about continued use past changes in the terms of service will
certainly not hurt and of course instagram has just such a clause in place)

Whatever the case, the only way you'll get that settled is by suing them
directly over an infringement of the copyright on your content uploaded under
the original terms. Doing that pre-emptively is weird, ineffective and serves
only one purpose, to give the lawyers that are promoting this class action
suit free publicity. This will go absolutely nowhere.

Lawsuits over non-specifics that have not taken place, that you can avoid and
that may never take place without specific damages are not good candidates for
class-action.

> Third, yes lawsuits are a "cost of doing business" in the U.S. but comparing
> it to Switzerland is comparing apples and oranges.

For a multi-national this is everyday life. They compare the cost of doing
business from country to country and this factors into pricing the product.

> The Swiss have far more regulation and government oversight of companies
> than in the U.S. European countries in general set detailed standards and
> guidelines for consumer products and services, while the U.S. prefers to
> handle such things through litigation.

Indeed. Whether or not that is the better way is up for grabs. But class
action lawsuits on free services _before_ actual infringement takes place is a
load of bull.

The one thing that I don't get is why people are still surprised over things
like this. It's par for the course, and has been for more than a decade now.

------
xiaoma
I'm amazed by how many of the comments here are missing the point entirely.

It's not about the money. It's about privacy.

When Google offered a good email service free of charge, I took them up on it.
That does not mean that I would be even remotely okay with them re-writing
their privacy agreement to they could start selling my personal emails to
corporations or people willing to pay. If that day came, I absolutely would
want to sue. Since it would be nearly hopeless to take on a company with the
resources of Google on my own, a class action lawsuit would be an attractive
option.

The fact that a service is provided for free is completely unrelated to
obligations regarding privacy. Some here might ask, how does the service make
money? Figuring that out is the responsibility of the owners, not the
customers.

~~~
jacquesm
Google will monetize your personal emails in ways that are much more subtle
than what FaceBook/Instagram are doing with the content that users upload to
their service.

If you are going to sue then you have to wonder what it is that you want to
achieve! Do you want to achieve that they'll stop doing it? Ok, then deny them
your content, and start doing that today. Terms and conditions as a rule
contain a clause that says that they can be amended at some point in the
future. That alone makes most t&c completely meaningless and giving a company
a large amount of data on you is a risky proposition at best.

Google is probably not dumb enough to try to sell your data direct, in spite
of that you have to wonder if a free email service is worth the downside of
giving some corporation such a tremendously detailed insight into who you are,
what you do and who you communicate with. The safe assumption is that they'll
datamine it as much as they can get away with, to monetize it as much as they
can get away with just short of infuriating you enough that you'll quit.

If a service is provided for free the coin _is_ your privacy, any assumptions
to the contrary are naive. The only question is whether or not you think the
trade-off is worth it. For me it isn't.

~~~
xiaoma
I have no problem with Google sending me targeted ads. If they do it well,
I'll happily support the business model and make them money. That's a
completely different proposition than giving away personally identifiable
information.

> _If you are going to sue then you have to wonder what it is that you want to
> achieve!_

In the above scenario of them illegally selling my private communications to
the highest bidder, I would want damages to 1) sufficiently compensate me for
any violations of my privacy and 2) provide a powerful disincentive to other
companies who might consider taking similar actions, thus shifting the game
theory of mass consumer social businesses. In order to achieve the second of
these aims, criminal charges for the offending parties would be more effective
than mere financial penalties.

> _Terms and conditions as a rule contain a clause that says that they can be
> amended at some point in the future. That alone makes most t &c completely
> meaningless and giving a company a large amount of data on you is a risky
> proposition at best._

Fortunately there are laws beyond T&C click-throughs. I support strengthening
those laws in regards to any kind of of privacy bait and switches. In cases
where I have a reasonable amount of trust in the company (e.g. Google), I'll
use the service. But I'll still support legal protections, the EFF and those
who call out underhanded companies.

Call me naive if you like, but I prefer that response to taking an RMSesque
one-man stand by simply not using the tools the rest of the world is adopting.

~~~
jacquesm
> That's a completely different proposition than giving away personally
> identifiable information.

That's just one hack or a terms-of-service change away from happening. Again,
google being hacked at that level is unlikely (but they've had an instance of
an engineer going rogue and accessing customer accounts for stalking
purposes), and google changing their TOS in such a customer hostile way is
also unlikely but I would never bet against either of those happening in the
longer term.

> In the above scenario of them illegally selling my private communications to
> the highest bidder, I would want damages to 1) sufficiently compensate me
> for any violations of my privacy

You're going to have to define 'sufficiently'. What price would you put on
your privacy? A few hundred bucks (the typical take in a class action suit is
much smaller than that, except if you're a lawyer of course). A few thousand?
Tens of thousands? Hundreds of thousands? For me it is high enough that I
won't consider taking the risk. And if I did take the risk I'd have implicitly
granted google the ability and possibly even the right to screw me over. Using
the legal system to seek redress over something that I can avoid in a much
simpler way seems to be the easy solution to me. Convenience has a price, but
my privacy is worth a lot more than the value of convenience.

> Fortunately there are laws beyond T&C click-throughs.

Sure there are. But especially in the United States those laws regarding
privacy are pretty weak. And these are all US companies we're talking about
here.

> I support strengthening those laws in regards to any kind of of privacy bait
> and switches.

I would too, but right now bait-and-switch is perfectly legal, as long as you
warn up front that you can change your terms you're in the clear.

> Call me naive if you like, but I prefer that response to taking an RMSesque
> one-man stand by simply not using the tools the rest of the world is
> adopting.

For me it isn't worth it, for you it is. If you look back in a few years with
regret then you have to wonder what real grounds you have for a lawsuit, after
all this is apparently something you are aware of, you can't use the law to
fix such things after the fact. The loss of your privacy can not be undone.

------
kloncks
I get the criticisms against Instagram. There's a lot of validity there. But
seriously, at the end of the day, if you don't like the changes...stop using
the service. There's no entitlement here.

<http://xkcd.com/1150/>

~~~
adrianm
I don't personally use Instagram, but I do use other services that share a
similar monetization structure. (Google, et al.)

Although the entitlement mentality shown by users is certainly an
overreaction, primarily by users who don't understand the corporate structure
that they've bought into by their use of the services, I can't say that xkcd
comic you quoted in support of your position is valid.

These companies turn the data we the users produce from our individual actions
and queries into a marketable asset that they can (if everything goes
according to plan) profit from. This means that their service is not offered
altruistically or even unwillingly; their persistant existence relies on our
using their services.

I don't want to come off like a privacy nut, because first of all it would be
hypocritical given that I am a user of Google and Gmail, but something just
doesn't smell right to me about this situation we have all gotten ourselves
into by using these products.

~~~
lucian303
To paraphrase someone wiser than me: "If you're not paying for it, you're not
the customer, you're the product."

Period.

~~~
alexqgb
Oh for god's sake, just STOP with this trite bit of idiocy. Every time a
service that relies on users IP to do business does something users dislike,
some brainless moron repeats this goddamn cliche as though it were an actual
contribution to the conversation.

What you need to understand is this: IP has real value. Period. So when a
company secures limited use of yours in return for a specific service under a
specific set of terms, they have no business retroactively changing those
terms, any more than they would in the case of a cash transaction. And stating
that the terms can be changed simply means the company is free to evolve the
service, and renegotiate accordingly. It doesn't mean that they can secure
your agreement under one set of terms, change everything, and retain unbroken
consent.

Every contract is based on an exchange of value. Both parties provide
something, and both parties take something away. While it's fair to classify
as "customers" those who pay cash, it's a mistake to think that other parties
to the transaction are less than fully protected by the laws that govern
exchange in general.

~~~
lucian303
That's not how most TOS are written and since you're not paying for the
service (not that that would make a difference in reality) you're not going to
get the protection you think you're entitled to. That's not how the law works
in reality.

------
aroberge
Living outside the United States, it is difficult to understand the mindset
that leads to these class action lawsuits - especially so in this case where
people did not pay to use the service in the first place. While my original
reaction was to question the relevance to HN of this post, I realise that it
can serve as a warning to all those interested in starting a business that
will have US customers.

~~~
lysol
Essentially there are lawyers that seize on the opportunity to take advantage
of populist anger against corporations to get a payday (a cut of the
settlement). While class action lawsuits are good for holding companies
accountable generally a lot of people get a few bucks and a few lawyers get a
lot more.

~~~
genwin
Don't forget corporations' fear of class-action suits. Even when the average
plaintiff gets $nil the presence of class action suits might save their life
by dissuading a corporation from doing harm in the first place.

------
greenyoda
Presumably, Instagram's terms of service, like most others, say that they can
change the terms of service at any time simply by notifying you of the new
ones. If that's the case, I don't see how there could be a breach of contract.

------
gyardley
There will be a few more of these filed by a few more of the usual firms, then
the defendant will fight to get them consolidated into one case, then the
various plaintiff's lawyers will fight over who gets to be lead plaintiff and
how to divide the potential spoils, and then, if the case is going poorly or
the defendant figures the endless discovery is just too much of a nuisance,
the defendant will settle.

Over nine-tenths of the proceeds will go to the various lawyers, a couple
grand will go to whatever plaintiff they managed to scrape up, and the rest
will go to some ineffectual non-profit initiative everyone will forget about
the moment after the lawyers are paid. Class action trolling at its finest.

------
ljd
What actionable results would someone who doesn't pay for the service be able
to gain by this litigation?

Can a free user actually receive financial compensation from a lawsuit like
this? How would a company's liability even be measured in dollars for this
service?

Bandwidth expenses incurred by the user?

~~~
kapnobatairza
I don't think there will be much in the form of compensation/restorative
damages, but there is a likelihood that they can be held for punitive damages
if there is some breach of privacy as a result of the potential breach of
contract. It will be a very difficult case to make, since first they have to
prove Instagram breached contract (they didn't), and then they have to prove
that the breach of contract amounted to a violation of law (privacy, property,
or otherwise).... Even then, they won't be looking at much: Facebook's
"Beacon"-related class action lawsuit only amounted to the single-digit
millions, not exactly a windfall for anyone involved and little more than a
slap on the wrist to the company.

~~~
jacquesm
The one thing I can see in all this is that instagram specifically states that
they are '[It’s] a fast, beautiful and fun way to share your photos with
friends and family.'

Their terms of service are in direct contradiction of that, but it will still
take a lot of effort with likely nothing left for the members of the class to
put the lie to that. After all, if their homepage says 'friends and family'
and in their terms-of-service they state that they'll share your data with a
whole pile of others, including advertisers then they're clearly not billing
themselves right. But to translate that into a damage amount is going to be a
tough and very uphill battle. After all, we all read the terms of service to
all the services that we use, right?

------
lucian303
They maintained the mandatory arbitration clause. That's a lot worse than
selling pictures. I'm glad someone is standing up to FB (it is FB now period).

~~~
courtneypowell
I agree. Users have until January 19th to opt out of arbitration only! We
wrote a blog post tonight about how to opt-out. I'm more upset about that
clause then their intent to sell pics. AT&T does the same thing to their
customers and I witnessed first-hand how far they will go to make sure you do
NOT go class-action. [http://blog.publikdemand.com/instagrams-new-arbitration-
clau...](http://blog.publikdemand.com/instagrams-new-arbitration-clause-how-
to-opt-out/)

~~~
lucian303
Paypal just did this to a lot of their users, of course making you opt out by
mail (which I have no doubt that said mail, though sent, has been "lost in the
mail.").

But it's Paypal. They're above the law. Just like stubhub. Well no surprise
there.

