If Emily Posted: On TOS and Reading the Fine Print
A little over a week ago, an Instagram scare went viral. People were talking about new Terms of Service (TOS). People were outraged, others confused, some felt their trust violated.
But here's the thing, the TOS hadn't changed.
I knew because I had a copy of it from a piece I wrote in the beginning of March and was able to offer comparisons. What had changed? For the first time, people were reading what they'd agreed to all along.
I'm not a lawyer, just the granddaughter of one, but I'm a writer and photographer with a real concern for the respect of intellectual property (IP). When it comes to TOS, I read the fine print. I want to know what I am opting to give up in exchange for use of an online toy or tool (some are both - I use them for work and for fun). In most cases, there is going to be a trade-off. It's not all good or bad, but when it comes to services involving exchange of content, we have to pay attention to what we are agreeing to.
FACT: If you click and agree to any TOS, you give up the right to claim you didn't know better. Even if you didn't know better.
Sure, legalese is often clunky and complex. Sometimes, it seems we're encouraged not to read it because if we did, we might not do what we do. And what we do by not following TOS helps social media move at the pace it does. Respect for IP slows down the flow of information on sites like Pinterest and Tumblr.
DO YOU PLAY BY THE RULES?
People are always upset with Tumblr for the blatant copyright theft that takes place. While it's Tumblr's responsibility to respond to reports of copyright or trademark infringement, Tumblr is merely a platform. And the problem is that many of their users blatantly disregard the TOS. Ironically, they've just created one of the easiest to read TOS out there. It's hard to misunderstand fine print like this:
You have to be at least 13 years old to use Tumblr. We're serious: it's a hard rule, based on U.S. federal and state legislation, even if you're 12.9 years old. If you're younger than 13, don't use Tumblr. Ask your parents for an Xbox or try books. (via Tumblr)
While not everyone makes it that easy to read, key passages in TOS can be quite clear. Take these examples:
-You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.
-You agree not to post User Content that: infringes any third party’s Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary rights.
-You also agree that you will respect the intellectual property rights of others, and represent that you have all of the necessary rights to grant us this license.
-You will not post content or take any action...that infringes or violates someone else's rights or otherwise violates the law.
Are you doing what you legally agreed to do when you signed up for their services?
When you share what is yours to post, it's important to note that while you retain the rights to your content, in many cases you're basically giving an equivalent of a very loose Creative Commons license to have your content shared. Whether people use it unethically outside the site is hard to know.
Let's use Instagram (IG) here as it's a perfect example. (Again, I'm not an attorney, just a content creator who tries to follow this all very closely.)
This was the wording in the TOS that went viral a few weeks ago:
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. (via Instagram)
When you upload a photo to Instagram they must make copies of it to let others view it on mobile devices, on desktop apps, and the various services you can opt to display your IGs on (ex. twitter and Facebook), as well as third party apps. To work with the various servers they need to might need to do things to your images to. And unless you use Instagram with privacy settings it will be viewable to the world (see "publicly perform, publicly display").
(Interestingly, Tumblr offered a layman's breakdown of their very similar legalese under Subscriber Content.)
Third party apps come into play if you have your IGs printed by a photo lab, made into posters or other IG-related products that require IG to send your info to these servers. From this laymen's POV, there are valid reasons you give these permissions.
But, there are some third parties who break them.
A few months ago I realized that some of these desktop IG apps add the Pin It button to everyone's images, breaking the TOS for developers:
Remember, Instagram doesn't own the images - Instagram users do. Although the Instagram APIs can be used to provide you with access to Instagram user photos...you are solely responsible for making use of Instagram photos in compliance with the photo owners' requirements or restrictions. (via Instagram TOS for Developers)
FACT: You can't pin anything without the right to do so. Instagram doesn't give third parties those rights.
My friend Kal and I began reaching out to third party apps, asking them to remove the Pin It button simply because it was the right thing to do.
Only one would.
With one email from Kal, SnapWidget said they'd take it right down. Simply because she asked, and they realized it broke the TOS.
Within an hour or so, it was no longer there on anyone's images if you used their app.
I watched how quickly the embedded button was removed. It's interesting to see how quickly things can get done when people want them to.
We all make mistakes. What's important is that we do something about them.
I tried to explain to another third party app that beyond the fact they were breaking Instagram TOS, and the copyright of its users, people share a lot of things on IG unaware just how public they've made them. They shouldn't exploit that. Period.
I looked at my feed and saw a lot of photos people took - like their kids in the bath or a moment spent at the gravesite of a loved one - and thought how upsetting and inappropriate it would be to find them unknowingly plastered across Pinterest.
FACT: This is the priceless part of copyright. You have the right to say where your work may be copied.
(Contact the IG apps you use and ask them to remove the Pin It buttons they've placed so prominently by your images.)
BY THE BOOK
Just last week, a suit was brought against Burberry for using an image of Humphrey Bogart in Casablanca on their Facebook Page.
I'm seeing a problematic trend here with bloggers, big and small, ignoring Facebook TOS. In the last month, I've seen two bloggers I know asking to have their images removed from pages of strangers - independent and corporate. Images are being used without permission on a large scale. From Burberry to small bloggers - no one can use you to endorse something without permission.
Some go directly to the page owners to try and work these things out, but Facebook has resources to help do something about it... if you read the TOS.