

The Instagram Effect: National Geographic Suspends Its Popular Account - anuaitt
http://www.fastcompany.com/3004148/instagram-effect-national-geographic-suspends-its-popular-account

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potatolicious
This seems like an overreaction. Or perhaps more accurately, this seems like a
too-late reaction.

Instagram's TOS _before_ these sweeping, far-reaching changes was _already_
hostile to photographers. You granted Instagram a transferable, sub-
licensable, perpetual license _that has no expiry or termination condition,
ever_ the moment you uploaded something.

The terms of the license you grant Instagram is about as broad as it gets, and
reaches substantially further than just about any reputable photo sharing
service out there.

For example, Flickr and 500px's TOS gives them license only as long as you
hold the account and the image hasn't been deleted. Deleting your account or
the photos themselves is revocation of their usage rights. Instagram is bound
by no such rules.

By posting to Instagram _before_ the new TOS NatGeo _already_ exposed their
photographers to tremendous IP risk - one can only hope NatGeo themselves hold
the right to grant an irrevocable, perpetual, sublicensable license to the
photos in the first place.

I'm glad to see companies with photographer-hostile TOSes getting called out
for the tremendous overreach in their legalese, but this isn't really new,
Instagram was like this from the get-go.

~~~
hkmurakami
It's an overreaction with only upside though, since the only two possible
outcomes from their overreaction are (1) TOS remains the same or similarly
ominous, or (2) the TOS becomes more benign as a result of NatGeo's and
others' overreaction.

If (1) is going to happen anyways, then there's no downside to at least
posturing an overreaction.

~~~
coopdog
I think it's more about trust. The TOS might have been more permissive before
but we trust instagram not to do anything too crazy.

The new TOS, although less permissive overall, signaled a specific intent to
do some crazy things.

Especially in light of new ownership, the trust is being strained.

~~~
BadDesign
Why do you have to _trust_ them in the first place?

I tell you why, because their ToS is malformed otherwise you wouldn't have to
_trust_ them, you would only need to agree that the contract you signed with
them is respected accordingly, by them as well as by you.

~~~
pbhjpbhj
> _their ToS is malformed otherwise you wouldn't have to trust them_ //

License terms have a certain purpose behind them just like the law and just
like the law unless you specify ever possible scenario then you have apply
generic terms. The level of depth varies but a license that considered all
possibilities - and so wasn't 'malformed' would be very difficult to work
with.

So a company needs a certain level of freedom so they can disclaim copyright
infringement in circumstances such as showing adverts alongside your work. But
that level of freedom means they could by the letter of the agreed terms use
your images for advertising, but the company have told you that's not the
purpose of the clause and that they don't intend to do that.

So you're fine as long as the company continues to act ethically. There's
possibly an implied license, worth the paper it's written on, etc., etc..
Should they really go in to specifying what "alongside" means and the relative
proportion of advertising text on a page and whether advertising overlaps;
whether an interstitial (lightbox) based ad would be allowed if it showed some
of your image through the semi-opaque background; whether adverts for the site
that say had a glimpse of one of your images in the background were allowed;
suppose there's a trade show and you happen to be friends with a speaker and
your image shows in their timeline ... is that within the letter of the terms.
And so-on and so-forth.

This is why trust is important to save wrapping up our entire lives in
legalese.

If a company respects it's clients as people, then even if there is a loophole
in the ToS whereby they can screw those people up they won't.

~~~
potatolicious
> _"So a company needs a certain level of freedom so they can disclaim
> copyright infringement in circumstances such as showing adverts alongside
> your work. But that level of freedom means they could by the letter of the
> agreed terms use your images for advertising, but the company have told you
> that's not the purpose of the clause and that they don't intend to do
> that."_

The beauty of legalese is that we can have our cake and eat it too.

In fact this is precisely what many image hosts _do_ \- they enumerate the
allowable uses for your copyrighted material, instead of imposing a blanket,
kitchen-sink allowance.

If you want to profit off of advertising while displaying my photo? Put it in
the document, that's fine. Just don't go around asking me to essentially sign
all of my copyright over to you.

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chris_wot
This isn't the _Instagram_ effect... This is the _Facebook_ effect. I don't
know a single person who trusts Facebook.

~~~
sakopov
This is exactly what i was thinking. Had Instagram been on its own, there
wouldn't have been such an uproar. This is nothing but Facebook at work.

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chmars
The official statement at <http://instagram.com/natgeo> reads:

'@NatGEo is supspending new posts to Instagram. We are very concerned with the
direction of the proposed new terms of service and if they remain as presented
we may close our account.'

(The Fast Company article does not provide any additional value, it does not
even quote the original statement.)

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camo
"And though Instagram CEO Kevin Systrom has had to react and has promised this
won't happen, at least one big publisher isn't buying it: National Geographic"

Why does Kevin have to 'promise' not to use your photos? This is what terms
and conditions are for, so that 'promise' isn't worth the paper it's not
written on.

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flexxaeon
This whole thing is getting a little ridiculous. I expect "the masses" to
react this way, but not actual entities who _should_ have legal counsel.

It happened to Pinterest: [http://venturebeat.com/2012/03/23/pinterest-terms-
of-service...](http://venturebeat.com/2012/03/23/pinterest-terms-of-service/)

And Twitpic:
[http://readwrite.com/2011/05/10/your_content_your_copyright_...](http://readwrite.com/2011/05/10/your_content_your_copyright_twitpic_updates_terms)

Plus the fact that few of these "journalists" are pointing out that Twitter
currently has these same terms makes me wanna dust off my tinfoil hat.

~~~
brudgers
_"I expect "the masses" to react this way, but not actual entities who should
have legal counsel."_

National Geographic has undoubtedly run the new TOS past legal council. Did
yours advise you differently? If so, are they the firm of Dunning and Kruger?

~~~
flexxaeon
Can't say _undoubtedly_ that Nat Geo - or more likely, their social media
grunts - ran it past legal. Possible because the response is open ended. On
the other hand I'd expect an organization like that to have a more thought out
and tempered reaction.

I did call my legal counsel (he is neither Dunning nor Kruger) about the TOS
but I'm not protecting precious photographs here so the advice was a little
different.

~~~
brudgers
I am not a lawyer nor a professional photographer.

It is my understanding that the sort of rights one would grant a magazine such
as National Geographic for a photograph would be limited to derivative works
over which the magazine has editorial control, e.g. an advertisement for the
magazine and other situations associated with their brand.

It is my understanding that typically, one does not grant rights which would
allow the magazine to grant unlimited rights to third parties. In other words,
National Geographic may allow the use of one's photograph of orangutangs by
the Museum of Photography to promote a "Photos of National Geographic"
exhibit. They may not grant rights to the photograph to The Orangutang Club
and Dancehall.

Before a company like National Geographic puts any photographs on the web, the
lawyers have to make sure that such use is consistent with their rights. I
suspect it is quite possible that older photographs such as those from the
1960's might not have adequate rights, or that those from top photographers
might also be more encumbered.

What National Geographic's decision appears to mean is that Instagram's new
terms of service are possibly or likely to be incompatible with their rights
to particular photographs.

~~~
flexxaeon
I'm sure you're correct as far as the photography rights go. And I think we
all know what their decision means. I just find it hard to believe that their
legal counsel said "post a stern textgram photo with X-Pro II so they know we
mean business."

It all seems less about rights and more about drama.

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netcan
The underlying thing that is broken here is TOS's in general.

They are obviously not being read and they actually rely on not being read.
There is no cost in putting something in your TOS unless makes headlines. It
reminds me of medieval merchants buying prayers. The Southpark episode on
iTunes tTOS is the only correct response to this ridiculous situation.

In practice, this is not a reasonable way of making an agreement between users
& sites.

~~~
brazzy
Which is why in Germany there's been a law since 1977 that declares any part
of a TOS void if it's surprising and could not have been anticipated by an end
user, given the context.

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bentcorner
It's interesting to see this gain momentum. IANAL, and I am not an active
Instagram user, and I don't particularly have a dog in the hunt. However, I do
think there's a public relations lesson to be learned here.

Instagram modified their TOS in (I assume) what they thought to be something
acceptable for their users. Otherwise, why do it at all. Now, the backlash
begins. At first, we get facebook users complaining about it, then the blog
articles start rolling in and the link aggregator sites link to them. Now
NatGeo is pulling out. Is this the high water mark? Can Instagram do anything
beyond their post a day or two ago? Should they do anything?

I'm reasonably certain that there are many people at Instagram that wish this
whole debacle would just go away. I'm not sure if there's an easy way out of
this for them.

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smnrchrds
I believe a lot of well-known people will start deleting their account as
well. I don't think that Selena Gomez, for example, is comfortable with her
pictures being used for advertisements without her consent.

~~~
mistercheese
I highly doubt that just because its supposedly covered under TOS that they'd
start using celebrity Instagram pictures against their will. There are plenty
of reasons for them not to.

~~~
gorbachev
Yes, but "trust us" is not a good disclaimer on a legal document.

~~~
ahi
Even if you trust Instagram, ownership of them and their rights to your IP
could change hands to less scrupulous parties...

~~~
mkopinsky
Yeah. You never know when they'll get bought out for a billion dollars by a
social media company with a history for mistreating its users' IP.

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BadDesign
The new ToS seems to imply that you are going to give your house key to a
known thief/escaped convict and you are also thrusting him with not stealing
anything from your house.

Seriously? How certain is anybody that with the new TOS the thief won't steal
_anything_ from their house?

If the thief wasn't going to steal from the house in the first place then why
its called a thief that is even _authorized to steal your goods_?

Why is there such a ToS in the first place if the thief is incapable of
stealing?

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thejosh
Nat Geo is one of the few to be worried about this, as their images can be
used by Instagram for free.

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Nux
Why they started using that service in the first place is what's bugging me.

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cmelbye
It's an effective way to share photos with thousands of people, why not..?

~~~
pjmlp
Really? If it wasn't for the furor here I would never heard of Instagram.

Then again I am located in Europe.

~~~
kamjam
Wow, have you been living under a rock? Instagram has over 100 million users
and got sold for $1 billion to Facebook and you never heard of it? Next you
will tell me you never heard of Facebook...

I was located in Europe up until 2 months ago btw, so that really isn't an
excuse.

~~~
pjmlp
No, I just don't care about iPhone apps, maybe that is the reason?

