Instagram's new content license (it still doesn't own your content)

Rian van der Merwe posted a tweet asking me to comment on the changes to Instagram's Terms of Service:

@pauljacobson I thought you might be able to shed some light? b.elezea.com/post/221145426…

— Rian van der Merwe (@RianVDM) April 30, 2012

Rian posted the new license from the terms on his one blog and I took a quick look at it (I am in a lock-down here at work so I haven't had time to review the full terms for this post). The new license states the following:

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.

Rian's (and, I'm sure many other people's) concern is nicely summed up in the rest of his post:

Here’s my non-lawyer interpretation:

We don’t own your stuff, but we can do whatever we want with it.

Which kind of sounds like it can be shortened to:

We own your stuff.

Any lawyers out there who can clarify what’s going on here?

The subtext here is that the Facebook acquisition has poisoned this popular service and Facebook is encroaching on Instagram users' rights over their content. As Web services go, this content license is typical and hardly a land grab which it may be made out to be. As I mentioned in my previous post about the Google Drive license terms –

This clause clearly states that Dropbox doesn’t claim ownership of your data but the more important set of provisions are those dealing with the license Dropbox takes from its users when it comes to accessing and making use of the data you upload to Dropbox. Bear in mind that all of these services will have a license of some sort. A license is a set of permissions you, as the user, give to the provider and that enables the provider to receive, manipulate and otherwise handle your data. It’s an essential component and nothing to be alarmed by in itself (at least not if you are comfortable with the basic idea of a provider having access to your data as part of your use of the particular service).

Instagram's license is fairly broad but it could be even worse. The license is basically designed to enable the service to operate. In the absence of a specific license Instagram could fairly convincingly argue that the permissions set out in this license would be implicit in the unspoken license users would grant to Instagram merely by using the service. In other words, when you use Instagram, the license provisions are implied by your use.

By comparison, here is the license Facebook takes from you:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

What I find interesting about the Instagram license is that it is implicitly in favour of Instagram, Inc (the company behind Instagram); it isn't transferrable and it isn't even sub-licensable. This means the license is limited to Instagram and you don't give Instagram the right to license your content to Facebook or any other party. The wording is a little unclear because the license gives Instagram the ability to distribute "part or all of the Site in any media formats through any media channels" and yet it doesn't permit the content to be sub-licensed or to transfer the license to another party. This is probably a flaw in the license language because it is notionally problematic for anyone to consume other users' posts in a way that would require those consumers exercising the user's rights under copyright and which is not covered by an exception to copyright infringement like fair dealing or fair use.

Moving away from the legal geekery, the new Instagram license is not a land grab. It is a pretty reasonable license given the nature of the service and doesn't equate to "We own your stuff". Rather it's more like "We can do things with your stuff to make Instagram work".

Is Pinterest a den of copyright thieves?

Background

A debate whether Pinterest is flouting copyright laws by allowing its users to post, or "pin", images and videos to the site is raging online. If you haven't heard of Pinterest, it is one of the hottest new social networks that encourages users to share stuff they find on the Web. Pinterest's focus is on images and videos and the service gives users ways to republish images on the site and categorise them in "Boards". I found a great introduction video which explains the site with a series of demonstrations:

The site is enjoying tremendous uptake and once you start using it you can understand why. It enables people to create collections of ideas for their homes, brides use it to source inspiration for their weddings and share them with friends and so on. It is a truly social service but it relies on its users republishing 3rd party content to the site so questions about the copyright implications are understandable. One group of content owners who are particularly perturbed about Pinterest are photographers whose works are being published and shared on the site. Mike Masnick over at Techdirt believes this is not what photographers should concern themselves with and points to Trey Ratcliffe's post (read this post for an expanded discussion about this) about the benefits of having his photographs "pirated" as support for his position that Pinterest's benefits far outweigh any potential harm photographers may suffer by having their works pinned on the site:

Either way, his point is a strong one, and it's really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do... or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works... all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

Exclusive rights

Regardless of the benefits of sharing more openly or even tolerating copyright infringement, content creators are entitled to protect their rights so the question remains what those rights are and whether Pinterest is either directly infringing copyright or is facilitating copyright infringement by its users? I'll explore these questions in the context of South African copyright law which is largely governed by the Copyright Act, No. 98 of 1978.

Images and videos are categorised as "artistic works" and "cinematograph films", respectively. Provided this content is original and reduced to a material form, it is generally protected by copyright. This means that the content's copyright owner has a number of exclusive rights in and to that content –

Nature of copyright in artistic works.

7. Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) 　 Reproducing the work in any manner or form;
(b) 　 publishing the work if it was hitherto unpublished;
(c) 　 including the work in a cinematograph film or a television broadcast;
(d) 　 causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e) 　 making an adaptation of the work;
(f) 　 doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Nature of copyright in cinematograph films.

8. (1) Copyright in a cinematograph film vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) 　 Reproducing the film in any manner or form, including making a still photograph therefrom;
(b) 　 causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
(c) 　 broadcasting the film;
(d) 　 causing the film to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;
(e) 　 making an adaptation of the film;
(f) 　 doing, in relation to an adaptation of the film, any of the acts specified in relation to the film in paragraphs (a) to (d) inclusive;
(g) 　 letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the film.

Barring exceptions to copyright infringement (more about that below) and a license from the content owner granting permission to exercise these rights (more on this below, too), any exercise of these rights would likely be copyright infringement. Section 23(1) deals with this specifically and states the following –

Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.

Copyright infringement exceptions

At this point the law becomes a little tricky. The Copyright Act recognises a series of exceptions to copyright infringement. This means there are uses of copyright protected content which, but for these exceptions, would be infringing uses. I won't republish the sections of the Act for the sake of some semblance of brevity but below are the principles which come out of the Act (this is not a complete treatment of these exceptions):

• In respect of photographs –
  • personal or private use does not infringe copyright;
  • using the photographs for the purpose of reviewing or criticising them is similarly not infringing; and
  • "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".
• In respect of videos –
• "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".

Unlike artistic works, cinematograph films don't carry the same exceptions that permit use for "personal or private use". In the United States there is a broad exception called "fair use". We don't have fair use in our law but we do have "fair dealing". That said, "fair dealing" is pretty much limited to literary and musical works (think print publications and sheet music).

Back to Pinterest

So what does this mean so far? Well, before you even look at Pinterest's terms of use, you know that you can probably copy photos and publish them to Pinterest under the "personal or private use" exception for artistic works but the same doesn't apply to videos. If you had permissive licenses to republish those photos and videos on Pinterest from the content creators that would resolve your dilemma but that would depend very much on where you get the photos and videos from (there is a wealth of content on the Web released under flexible licenses like Creative Commons but this has to be specified - your default is always that the copyright owner reserves all rights and that means you don't have any).

Pinterest's terms of service contain content licensing provisions. These provisions comprise the broad license users grant to Pinterest and licenses Pinterest grants to its users. The purpose of these licenses is to ensure that the site can continue to operate but the challenge is that the licenses are not always in line with the rights users have to use the content on the site. Here are the relevant provisions:

Pinterest Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Pinterest Content solely for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Application, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Cold Brew Labs or its licensors, except for the licenses and rights expressly granted in these Terms.

Member Content

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

In many instances it may be legally impossible for users to grant the license Pinterest takes from its users and for Pinterest to re-license that content back to users. Even where a photograph or video is made available under a permissive Creative Commons license, Pinterest's license terms are at odds with those liberal licenses. What this means is that, in the absence of legally competent permissions, using the content on Pinterest could infringe copyright. This would seem to be the case with video content and with Pinterest's use of photographs published to the site which are not licensed for that purpose. Users republishing photographs may be protected by the copyright exception I mentioned above.

Pinterest is aware of these concerns and published a post recently titled "Growing Up" in which the Pinterest team pointed out its efforts to comply with US copyright legislation and the "take down notice" procedure which gives rights holders the ability to have infringing content taken down –

With all that growth, we’ve gotten more questions from reporters and Pinners. In the past, we’ve been pretty quiet, but we want to get better about answering questions openly with people who are interested in Pinterest. We decided to start today by talking about copyright.

As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.

Pinterest also introduced a mechanism a little like the robots.txt mechanism where copyright owners can incorporate code into their content links to prevent Pinterest from pinning that content. This may or may not be much comfort for copyright owners but I find myself going back to Ratcliffe's, Masnick's and numerous others' points about the benefits of sharing more openly and ignoring many infringing uses (sometimes even encouraging it). It comes down to whether a copyright owner is interested in exploring a more innovative model or prefers more control. Either way, there seems to be grounds for concerns about Pinterest and copyright infringement that don't seem to have easy answers.

Looking to the left of copyright

I just watched a terrific video interview with Neil Gaiman in which he talks about his experiences with what some may consider piracy on the Web. His story is not new to me and a number of popular authors and artists have had similar experiences including Paulo Coehlo and Nine Inch Nails. The story is usually about an author or artist who releases his or her works on to the Web under a liberal licensing scheme or comes across pirated copies of those works on the Web. The result is often counter-intuitive: an increase in sales and popularity.

As an author or artist your work is your livelihood and the conservative approach is to restrict access to the work by reserving all rights under copyright law and clamping down on infringements. There is a lot of merit in this approach, for sure, but there are also a number of opportunities for those creators who are courageous enough to try something a little more open. Options include using Creative Commons licenses, more accessible purchase options and pricing strategies. I found Gaiman's experiences in Russia to be particularly interesting. If I remember correctly, Coehlo had a similar experience in Russia, a country associated with music piracy websites and a disregard for copyright law.

Copyright law was originally and is still intended to foster creativity. What we find, in practice, is that Big Media (my term for the international music and movie industry) is engaged in a cold war against new business models and copyright infringers and, almost in keeping with George W Bush-style rhetoric, have made the choice consumers have one between supporting an aging and increasingly ineffective business model and supporting the "terrorists" (these people may be actual terrorists or something similar from Big Media's perspective). Copyright law is currently being used to stifle creativity, frustrate consumers from legitimately purchasing content they want (the licensing limitations on music, movies, tv series and books which we see through iTunes Store and Kindle books availability is a manifestation of this approach) and manipulate governments to implement draconian penalties through draft treaties like ACTA.

This is not an argument against copyright law but rather its application by vested interests that are often at odds with creators' interests. Content creators would do themselves a disservice by not exploring alternatives to the conventional model (sign with a label, publisher or equivalent body) and making informed decisions about what would be in their best interests as creators and business people. Rather than being intent on stealing content at the first opportunity as Big Media would have us believe consumers are (this characterization sounds a lot like racist rhetoric we have come across in South Africa), I firmly believe that consumers want to pay for content but it has to be at a reasonable price and through a convenient outlet. In the case of music, movies and tv series, that tends to be downloads for many people. When it comes to books, it is increasingly ebooks from Amazon or elsewhere. Those consumers are who this content is intended for.

So called copyleft options make content more accessible consumers. Think about it.