Shady Illuminations Instagram’s Image Problem by John Shade By reading this column you agree to abide by incomprehensible terms of use that John reserves the right to change at any time. Marvel Comics just killed off Peter Parker [U1], its most enduringing and beloved character. I was surprised. I didn’t realize that Marvel had become a subsidiary of Facebook. Instagram, which did become a subsidiary of Facebook, seriously angered its fans late last year when someone actually read its terms of use. You’d have thought Instagram had killed off its beloved mascot [U2]. And the funny thing is, Instagram really didn’t do anything out of the ordinary. The boilerplate legalese in Instagram’s terms of use made the usual sweeping assertions regarding its claimed rights in your intellectual property, the kind of stuff lawyers have been polishing to a dazzling opacity since Medieval times. Only this time there was a reaction. Word went out on, heh-heh, Facebook that you should get your pictures off Instagram because it was going to do nasty obscene things with them. Like license them to advertisers. Instagram suddenly lost millions of users [U3] and was hit with a class-action suit [U4], while Facebook’s stock price dropped a couple percent, although to be fair, Facebook is capable of losing stock points without any help from Instagram. Instagram backtracked, offered assurances, even tweaked its terms of service. Was there ever really a problem? Yeah, there probably was. “Facebook... has a long history of gradually changing its contractual terms and business practices to obtain greater leverage over user-generated content,” one copyright lawyer warned [U5]. Like Saruman wanted leverage over Middle Earth. So just what was Instagram claiming in its terms of use? Chances are, Instagram management didn’t even know. And it’s a lead-pipe cinch that the users who brought out the torches and pitchforks didn’t know what they were up in arms about. It looked like Instagram was claiming the right to license the use of your photographs to a third party. That doesn’t sound good, and it’s not hard to sketch out a scenario in which this could cost you real money. Say you take an awesome picture of Times Square on New Year’s Eve from the window of your hotel. Since you’re such an accomplished photographer, the hotel is willing to pay you to use that picture in its advertising. But wait a minute—if they can license it from Instagram, why would they bother to talk to you? They wouldn’t. Sorry shutterbug, Instagram just stole your sale. Of course that’s just a made-up scenario based on a guesswork interpretation of the terms of use. Instagram insists that its motives were pure, but even if we buy that, and gosh, why wouldn’t we, intent can change. The only message PragPub January 2013 38