Much Ado About….What Exactly?

The online world has managed to get itself into a panic the last few days over Instagram’s plans to change its Terms of Service. Now, you would think that only nerds like a media law blogger would be the only ones who care about something like that. But you would be wrong. People are concerned that the updated TOS gives Instagram carte blanch to sell users’ uploaded photos. And the reason why people think the updated TOS might do that is because, uh, they do. Here’s the new term:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

Now Instagram is backing down , sort of. I say sort of, because for as much flak as the company has gotten recently, it seems to me its existing TOS gives it pretty much power to do what it wants with uploaded content. Here’s the how the current TOS addresses “ownership” of uploaded content:

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

It seems to me that a license that allows for “unlimited” distribution of the content would allow Instagram to sell that content to an advertiser. So, if Instgram can sell content under the old TOS, what exactly is all the shouting about with the updated TOS? Maybe I’m missing something. But if you are really concerned, here’s a pretty good post that offers some tips about how to protect your content.