Last night Instagram announced that it was retracting a controversial terms of service change that was widely and inaccurately interpreted to mean that the company would be selling user photos. "Because of the feedback we have heard from you, we are reverting this advertising section to the original version that has been in effect since we launched the service in October 2010," founder Kevin Systrom wrote in a blog post. "Instagram has no intention of selling your photos, and we never did."
That certainly sounds like a win for consumers, but it's actually a loss: the newly-reinstated terms of service clause is objectively worse for users than the new one, and it's worded far more vaguely — the language feels familiar and comforting, but you're giving up more rights to your photos. Instead of agreeing that Instagram may only "display" photos "in connection with" advertising, users will now continue to agree that Instagram may place advertising and promotions "on, about, or in conjunction with" their photos.
Instagram just won a round of positive press and the ability to put ads on photos
That's advertising on your photos, in case it wasn't clear. Whatever kind of victory all those protests achieved, it wasn't one for consumer rights — if anything, Instagram is the real winner here. The company just managed to score a round of positive press for retracting an unpopular change and give itself the ability to actually use photos in ads.
Worst of all, the Instagram debacle is destined to be discussed in boardrooms and business schools for years to come as an object lesson in keeping terms of service vague and hard to understand. Had Instagram just left its existing terms in place, the company would have been totally fine — that agreement was broad enough to let Instagram do virtually anything with user photos, and pursue any business plan it desired. Seriously: the old terms allow Instagram to "use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate" your photos and distribute them "in any media formats through any media channels." The new terms pulled that back to just "use" and "display" — and there was a panic over "display." Why?
The media pounced on an easy, inaccurate story
Because no one had ever paid attention to the old terms. Changing them just invited people to look at them — and because the new terms were actually easier for humans to read, it didn't matter that they were also legally more limited. You don't need to be a lawyer to have an emotional reaction to the words "without compensation to you," but you probably do need some training to know that the right to "display" is a distinct and limited concept in copyright law. The media utterly failed to make that distinction, jumped on the easy emotional story, and the backlash was on.
If you're a lawyer today, you just learned that bad things happen when a hint of clear language invites non-lawyers to read your work. And you'll react in one of two ways: you'll either make your contracts so confusing and impenetrable that no one will read them, or you'll make them so "friendly" and "fun" that no one will read them correctly. Come give me a hug, your contracts with the public will say. Do not mind that I am ruthlessly picking your pockets to sell targeting data to advertisers.
Vague language is comforting, easy to ignore — and dangerous
That second lesson is particularly dangerous in the tech world, where products, services, and norms change so rapidly the law can't possibly hope to keep up. An industry afraid of user backlash every time a terms of service agreement changes simply won't change those agreements very often — instead, it'll make them as broad as possible to cover any possible future plans. And this strategy will work: vague "human-readable" language is comforting and easy to ignore, while harsh, specific legal language always makes people uncomfortable. That's why the popular Creative Commons licenses are broken into two pieces: there's the fun chart everyone likes, and then the actual foreboding legal language of the license.
Just think about Instagram itself: it began as a startup called Burbn that attempted to compete with Foursquare, before pivoting into photosharing and growing into a juggernaut. These pivots are common, which is why Instagram's current 2010-vintage terms give the company the right to any "sounds, musical works, videos, or applications" you might upload to the service. That doesn't make any sense for Instagram in 2012, and that's why Instagram changed its terms this week — to clear out all the junk and only take the rights it needs to operate. Why should we expect users to sign a broad contract for every possible service? But the change invited scrutiny, and that scrutiny led to backlash. You can bet Kevin Systrom wishes he'd just kept the rights to all your musical works on Instagram and left well enough alone.
You can bet Kevin Systrom wishes he'd just kept the rights to all your musical works
Just ask yourself: Instagram wrote an open-ended contract that allowed it to grow up into any kind of company it wanted, and when it tightened that contract to reflect the kind of company it had become, the world tried to light it on fire. Why would anyone ever do that again?
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