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Shady Illuminations

Instagram’s Image Problem

by John Shade

Generic image illustrating the article
  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, 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.

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 and was hit with a class-action suit, 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. 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 from Instagram that counts is the contractual language in its terms of use. So what does that document actually mean?

Well, that’s the problem. The outraged users don’t really know. Instagram management doesn’t really know. Only the lawyers know for sure.

Right, the lawyers. Here’s the thing about lawyers: they don’t write to communicate. Lawyers are like programmers, their code doesn’t have to be human-readable. It may even be deliberately obfuscated. It just has to run on the target system and produce the desired outcome. In the case of terms-of-use language, the target system is the courts, and the desired outcome is income.

Instagram has spent a lot of money creating a place for you to display your pictures—which presumably have some value or you wouldn’t bother to post them. And just as a bank instinctively acts to extract all the value it can from your money as it passes through its corporate fingers, Instagram wants to squeeze what value it can out of your pictures while they’re taking up space on its servers. It can’t help itself. It’s a social media corporation, it was made that way.

Unfortunately, Instagram didn’t sufficiently obfuscate its lust. This hurt the company in the short term, but there are signs that all has been forgiven and the Amazing Instagram is bouncing back as the Superior Instagram. Because the only thing shorter than an outraged user’s fuse is an outraged user’s attention span.

John Shade was born under a cloud in Montreux, Switzerland, in 1962. Subsequent internment in a series of obscure institutions of ostensibly higher learning did nothing to brighten his outlook. He says he doesn’t post his pictures online because he doesn’t photograph well. Follow John on Twitter, send him your feedback, or discuss the article in the magazine forum.