Wikipedia text, Creative Commons licenses and #HummingbirdGate

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend.

Woolworths Hummingbird Scatter Cushion - licensed CC BY-SA 3.0 Unported
Woolworths Hummingbird Scatter Cushion – licensed CC BY-SA 3.0 Unported

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend. As I pointed out in yesterday’s post –

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

  • correctly attributing the Wikipedia article the text was drawn from; and, more significantly,
  • licensing the Woolworths design “under the same, similar or a compatible license”.

Woolworths spoke to its lawyer and tweeted the following in response to a query from @WikiAfrica:

Unfortunately the lawyer Woolworths spoke to missed the real issue. This isn’t about Wikipedia owning the Woolworths design. Wikipedia doesn’t even claim ownership of the content on its site, it is all about licensing the content and complying with the relevant Creative Commons license conditions. In this case, we’re talking about the Creative Commons Attribution-ShareAlike 3.0 Unported license.

I wrote about a terrific guide to Creative Commons licenses which Ars Technica published a couple years ago and, instead of repeating what they have already written, take a look at the guide instead. The guide is titled “Creative Commons images and you: a quick guide for image users“. The key license element is the ShareAlike license element which Ars describes as follows:

The “Share Alike” attribute is intended to mimic the function of the GNU Public Licence’s “copyleft” provision, and it stipulates that anyone who creates a derivative work has to license that work under the same Creative Commons license that you used for your original work.

Because this particular clause matters only to those who plan to make new, derivative works based on Creative Commons-licensed content, it’s generally not that important for publishers, advertisers, and most end-users.

What this means is that the Woolies design, as a derivative of the Wikipedia article because it incorporates the text (the license uses the term “Adaptation” which is basically a work based on another work covered by the license), has to be licensed under the same license (I originally read a description of the license as permitting a similar license but the CC version of the overview specifies the same license). To comply with the Creative Commons Attribution-ShareAlike 3.0 Unported license attaching to the Wikipedia source text, Woolworths will have to license its design under the same license. It would also have to attribute the source of the text which is easy enough to do (the Ars guide has a great description of this process too although implementing that practically may be a little challenging just from a logistical perspective).

Of course licensing the Woolies design under a CC license has its own challenges which depend partly on the source license for other design elements (for example, the hummingbird image) and Woolies’ attitude towards releasing its design into the Commons for others to use under the license. Other than that, this is a pretty easy issue to fix.


p>The big takeaway here is to pay attention to content licensing issues when sourcing material for your products. Sourcing material from Wikipedia is great, just comply with the license requirements. There is a wealth of Creative Commons licensed content out there which is terrific. Using that stuff requires a different mindset to the usual content licensing approach but the opportunities are inspiring.

The @Woolworths_SA hummingbird: a parable

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together[1]. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

Euodia shared many of her ideas and artworks with Woolworth including a painting of a hummingbird she was selling in her store. One of the ideas they discussed was a pillow with her hummingbird printed on it. That would surely be a treat!

Sadly, Woolworth decided against continuing with Euodia and he sent her a note a few months later letting her know. She was disappointed and went on her way. A short while later, she happened to come across a store selling Woolworth’s goods and noticed a pillow with a hummingbird on it that looked remarkably like hers. She was shocked! The pillow size looked about the same as the one she discussed with Woolworth and he even seemed to take words about hummingbirds from the legendary Book of Wiki and used it as a background on the pillow and there was no mention of his source at all[2]. Shameful!

She has heard stories about Woolworth doing something like this to other artisans in the land, including a young fellow called Frankie who came up with an idea for some old-style cool drinks which some locals seem to favour. She was horrified to discover that she seemed to be next in line. She felt compelled to share her story and published her sad tale in her newsletter. Soon, it seemed even the birds were twittering about it. Everyone was shocked.

When Woolworth heard the story from a number of little birdies, he was dismayed and published a notice of his own. He said he had been talking to another talented artist in a coastal town some time ago about a similar concept and didn’t steal Euodia’s idea. It was all a bit misunderstanding and he had sent many messages to Euodia in an effort to meet with her and sort this whole thing out.

The people weren’t convinced. They heard about poor Frankie and were outraged that Woolworth had stooped to this level. They quickly came together and decided to petition Woolworth to stop taking advantage of local artisans.

A young writer read a story in a local paper and gave this all some thought. He hadn’t worked with Woolworth before but something about the story and what everyone was saying about Woolworth seemed to miss a possible explanation. He decided to investigate whether Woolworth really did pull the wool over everyone’s eyes or whether something else was afoot.

In the meantime, some intrepid journalists discovered that Euodia’s hummingbird may not have been completely original work either. This just fuelled our young writer’s curiosity so he set off for his local thinking spot under a shady tree and conducted a thought experiment.

Certainly, he thought, Woolworth could be the devious and unprincipled trader many accused him of being and if he had stolen Euodia’s idea like he seemed to have taken Frankie’s, he deserved the scorn he was receiving. In addition, given how closely other traders listen to messages carried by birds, Woolworth would almost certainly discover that a black reputation could have dire consequences for his value on local markets.

Perhaps, he thought further, there was another explanation. He had dabbled in laws and had noticed that most talented and persuasive business people like Woolworth tended not to consult with their lawyers. Their business was dynamic, exciting and full of potential and lawyers just seem to suck the light and colour out of the room when they speak. Perhaps Woolworth didn’t consult with his lawyers in their dungeons when he came up with his plan to work with Euodia.

Or, our young thinker thought, Woolworth did speak to his lawyers and they gave him a deed or some sort for Euodia to sign and which gave him permission to use her art in some form or another? She didn’t mention anything about that but it has been known to happen[3].

Exploring his first hypothesis a little further, our writer found himself wondering whether Woolworth, mindful of the Frankie story (and other similar stories), shouldn’t have adopted a different approach. Imagine Woolworth approached Euodia to contribute to his new artisan range not merely as a muse or supplier but as a creative partner of sorts. The world is a competitive place and you can’t help but hear stories about young creative people like Euodia outdoing established business people like Woolworth. Certainly, Woolworth’s products seem to bear that out. He certainly seemed to believe that Frankie was on to something great when he styled his drinks after Frankie’s. Similarly, Woolworth seemed to draw considerable inspiration from his discussions with Euodia in producing his hummingbird cushions.

Perhaps the problem here is that Woolworth didn’t challenge the usual relationship between traders like himself and young artisans like Euodia and come up with something that could clearly and transparently have benefitted both of them. What if he approached Euodia to publicly collaborate with him to produce the hummingbird product range using her designs[4] in his aptly named “Artisan” range. She would work with him to create wonderful designs for beautiful products and they would share the credit for the work. Woolworth could use his Artisan range to draw attention to the wonderful local talent Euodia and others represent and perhaps even have them sign their designs. The message he would send would be clear: Woolworth appreciates and supports wonderful, creative and, importantly, local talent and perhaps even goes so far as to create a platform for a select few to represent and uplift their communities.

The lawyers, if they are imaginative enough[5], could construct deeds to support this community upliftment initiative and enable Woolworth to go far further than his competitors in sustainably creating products that bring his customers even more joy. Most people know Woolworth is passionate about supporting schools and communities. Wouldn’t this be a remarkable way to do even more to support them and create opportunities for rich and diverse creativity to fuel it all?

Our writer stood up from his shady spot and ambled back to his small office. He smiled to himself at the thought of a progressive Woolworth. Imagine what he could accomplish. The people would be even more inspired to buy his goods because they would know they would be supporting local, amazing and creative talent.

  1. Disclaimer: This is partly fiction and mostly derived from reports about the so-called #HummingGate controversy which erupted online recently about Woolworths’ dealings with Euodia Roets. It is not based on any actual insights into anyone’s or any company’s methodologies and business practices (because I don’t have any actual insights). This is essentially a “what if?” story.  ↩

  2. As all in the land know, text in the Book of Wiki is available to all under a Creative Commons Attribution-ShareAlike 3.0 Unported license which allows many uses but also imposes attribution and license annotation requirements.  ↩

  3. Well, if this was the case, what Woolworth could do with Euodia’s work would depend very much on the wording of that document and he could have the right to do what he did after all, assuming he did what he stands accused of doing.  ↩

  4. Of course this assumes that the hummingbird in question was, in fact her design, and she didn’t draw direct inspiration from another artist. That would complicate matters considerably and our writer could just imagine groups of lawyers rubbing their grubby hands together in glee at the prospect of that.  ↩

  5. A big if but there are some pretty innovative lawyers out there these days.  ↩

The Entertainment Industry isn’t suffering – part 2

TechDirt has published its second “The Sky is Rising” report revealing some pretty good industry growth metrics despite the doom and gloom mantras chanted by industry representatives:

For years now, the legacy entertainment industry has been predicting its own demise, claiming that the rise of technology, by enabling easy duplication and sharing — and thus copyright infringement — is destroying their bottom line. If left unchecked, they say, it is not only they that will suffer, but also the content creators, who will be deprived of a means to make a living. And, with artists lacking an incentive to create, no more art will be produced, starving our culture.

It seems obvious to many that this could not possibly be true, so last year we looked into the numbers to get an honest picture of the state of things. Now, we’re following up with a closer look at six key markets: Germany, France, the UK, Italy, Russia and Spain. What we found there is similar to what we found last year: not only is the sky not falling, as some would have us believe, but it appears that we’re living through an incredible period of abundance and opportunity, with more people producing more content and more money being made than ever before. As it turns out… The Sky Is Rising!

Not too bad for an industry under threat:

Media myths about the new Instagram Terms of Use

A number of media services are clinging to the idea that Instagram is selling users’ content and that Instagram has the right to do this in perpetuity. As usual, many of these media services have not taken the time to actually read and understand the Terms of Use or the changes that are coming next month.

The user-centric license model

The fundamental shift from the model in the current Terms of Use and in other services like Twitter and Flickr to the model in the new Terms of Use is pretty dramatic. The current model is, essentially, that Instagram can present ads to you, drawing on your personal information to make the ads more relevant to you. If you accept that you will be presented with ads to support the service that you otherwise use at no cost (aside from your attention and personal information), this model is not all that surprising.

This is what Flickr’s terms and conditions (actually, Yahoo’s, considering that Yahoo owns Flickr) say:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

Similarly, Twitter’s terms of service have a slightly different approach and focus more on the license required to make Twitter users’ content (including photos) available both on as well as through companies working with Twitter to publish Twitter users’ content:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).

Essentially, the licenses found in the current Instagram Terms of Use, the Flickr/Yahoo Terms of Service and the Twitter Terms of Service focus on the following permissions:

  • Using users’ content and personal information to present targetted ads based on users’ preferences and profile data; and/or
  • Allowing the service and companies working with the service to publish users’ content as part of making the service available.

Typically these licenses are limited to the purpose for which the users make their personal information and content available.

The social influence license model

The new Instagram Terms of Use’s provisions dealing with users’ content and personal information mirror the Facebook Statement of Rights and Responsibilities. Both sets of terms and conditions have a different focus based on some user psychology which Facebook exploits pretty effectively. The basic idea here is that you, as a user, are more likely to be influenced by what your friends are doing on Facebook and Instagram. Unlike the user-centric license model where the emphasis is more on the user more or less in isolation, the social influence license model exploits the underlying social nature of these services and how they are architected.

This model is a smart evolution of a popular legal framework by adapting it to fit the social sharing model far better. This model focuses on associating users, their identities and their content with a brand or product based on their personal information and activity on the service (the example we used in our previous post was of a Facebook user who “liked” a brand).

So far this isn’t new to anyone who has used these services but two things emerge from the new paragraphs in the new Terms of Use. Firstly, Instagram isn’t so much selling users’ content as it is selling access to users, their content and personal information to brands. Secondly, by relieving itself of the obligation to point out when ads are ads (or similar sponsored content or promotional updates), Instagram gives itself the freedom to present these ads and sponsored content as if they were updates and posts voluntarily published by users as endorsements of the particular brands or products.

Why do they do this? Well, it’s pretty simple. Other users will be more likely to take more of an interest in brands or products their friends seem to be interested in. The catch is that the users apparently endorsing those brands and products through an apparent association with them may not even be aware that they have been associated with those brands or products. In fact, as some commentators have pointed out, the person associated with the brand or product may not even be the user who published the content but rather other people in the photos concerned.

You could find that a photo of your kids has been used to promote kids’ toys or some recreational activity without your knowledge. Kids between the ages of 13 and 18 could be used to promote some trendy service and Instagram creates a presumption that the teenagers’ parents or guardians have consented through assumptions in the Terms of Use (which may not have occurred anyway), leaving these kids to prove they didn’t obtain the consent in the first place. This may not even be legal in countries with stricter privacy laws.

Put another way

Comparing the current Instagram Terms of Use to the new Terms of Use could also be framed as follows:

Targeted ads vs selling social engineering to advertisers

Content sales is an indirect benefit of the new licensing model but it is not what the new licensing model is all about. Exploiting our relationships with each other and the underlying social referral dynamic of the social Web is what the new Instagram Terms of Use and Facebook’s revised legal framework are designed for.

The Facebookification of Instagram’s Terms of Use

Update (2012-12-21): Instagram has published a revised version of the Terms of Use. You can read about the changes in our follow-up post.

Instagram_Icon_LargeInstagram announced changes to its Terms of Use and Privacy Policy in an innocuous blog post on 17 December 2012:

Our community has grown a lot since we wrote our original terms of service. To get things up to date for the millions of people now using Instagram, we’re bringing you new versions of our Privacy Policy and Terms of Service.

Here are a few key updates:

  • Nothing has changed about your photos’ ownership or who can see them.
  • Our updated privacy policy helps Instagram function more easily as part of Facebook by being able to share info between the two groups. This means we can do things like fight spam more effectively, detect system and reliability problems more quickly, and build better features for everyone by understanding how Instagram is used.
  • Our updated terms of service help protect you, and prevent spam and abuse as we grow.

This is just a small preview. Our new Privacy Policy and Terms of Service will be effective on January 16, 2013.

We know these documents are a little dry, but they’re very important. Please take a moment to read through them so you keep feeling comfortable sharing your beautiful photos on Instagram.

A closer look at both updates reveals a number of changes and a few concerns which are not mentioned in this brief blog post.

New Terms of Use

To begin with, the new Terms of Use are dramatically expanded and run to over 6 000 words, compared to the current version’s 1 000-odd words. Comparing the two sets of Terms of Use side by side reveals that many of the changes are expanded versions of existing provisions but there are quite a few more substantive changes lurking within these expanded clauses and we have highlighted many of the more significant changes below. The way we have structured this review is by reference to the headings used in the documents. Where the headings are the same, we just used the heading title for both versions. Where the heading titles are different, we use the format “Old Heading / New Heading” so you can follow along with us if you are inclined to do so.

Basic Terms

This section is essentially a sort of acceptable use policy for the service and has been fairly dramatically expanded. For example, paragraph 3 of the current version states the following:

You are responsible for any activity that occurs under your screen name.

The same paragraph in the new version states the following:

You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Instagram prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Instagram upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.

This particular change was more of an expansion of a relatively simple version of the paragraph. There are quite a few of these sorts of changes in this section of the new Terms of Use.

General Conditions

While not really a change to the Terms of Use, this section includes a new version of the following paragraph allowing for changes to the Terms of Use:

We reserve the right to alter these Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, we will notify you via internet mail according to the preference expressed on your account. What constitutes a “material change” will be determined at our sole discretion, in good faith and using common sense and reasonable judgement.

The new paragraph is very similar to the amended counterpart in Facebook’s Terms of Service and it is one of the clauses which reveals the Facebook integration and influence over Instagram’s operations:

We reserve the right, in our sole discretion, to change these Terms of Use (“Updated Terms“) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms.

This new clause is somewhat vague about which sorts of updates would trigger a notification to you and, even if Instagram does notify you about a change, your notification could be a publication to the Service. This means that you need to be fairly vigilant when it comes to updates to the Terms of Use and you should check in on the application version from time to time if this sort of thing concerns you.

It’s worth noting that Instagram reserves the right to take your username away in some circumstances. This isn’t new but given how much attention Facebook pays to brands and accommodating them in its services, your username could be vulnerable if it corresponds with a brand, among other things. The clause in the new Terms of Use is somewhat broader than the existing paragraphs 4 and 6 which state the following:

We reserve the right to force forfeiture of any username that becomes inactive, violates trademark, or may mislead other users.


We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.

The new paragraph 5 simply states the following:

We reserve the right to force forfeiture of any username for any reason.

A new paragraph 8 in the updated Terms of Use both acknowledges the more connected nature of the Instagram service and possible integrations with third party services:

There may be links from the Service, or from communications you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Service. The Service also includes third-party content that we do not control, maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web site or feature, including applications that connect the Service or your profile on the Service with a third-party web site or feature. For example, the Service may include a feature that enables you to share Content from the Service or your Content with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. Instagram does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that Instagram is in no way responsible or liable for any such third-party services or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Instagram has not itself provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the Instagram Parties (defined below) harmless for activity related to the Application.

Aside from the obvious application to services that are not Instagram and the possibility that your Instagram profile and content may be integrated into those services, the way the key term “Service” has been defined introduces the possibility that Facebook may be one such “third-party web site”. “Service” is defined as “the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram”. This doesn’t appear to include Facebook so whenever you see a reference to “third-party web sites”, bear in mind this could well include Facebook and enable a workaround for the restrictions Instagram imposes on itself in the Terms of Use.

Proprietary Rights in Content on Instagram / Rights

This section has changed quite a bit and is the source of some justifiable concern.

Content Licensing

As a starting point and, in anticipation of media hype and interpretive challenges, Instagram does not claim ownership of any of you content. The big question is how broad the license it takes from you is and what that license enables Instagram to do? The current license basically states the following:

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.

I added the emphasis on the core license scope. The new license states the following (I added the emphasis):

you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy, available here:

Notice how the publicity of private content shifts from no disclosure outside the Instagram Service to being able to control “certain of your Content and activities”. The new privacy policy includes this new addition to the section about sharing your personal information which is not in the current (soon to be old) privacy policy:

We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Instagram is part of, or that become part of that group (“Affiliates”). Affiliates may use this information to help provide, understand, and improve the Service (including by providing analytics) and Affiliates’ own services (including by providing you with better and more relevant experiences). But these Affiliates will honor the choices you make about who can see your photos.

What this means is that, under the new Terms of Use and Privacy Policy, your personal information and Content can be shared with Facebook and other companies that become part of Facebook’s group of companies. The way the Privacy Policy is framed, you agree to this merely by using the Service. Depending on how you feel about Facebook accessing your Instagram content and personal information shared with Instagram, this could be a big concern for you.

Returning to the licenses, the new license introduces two important permissions: the ability to transfer or even sub-license the license you grant to Instagram. The license doesn’t limit who the rights you grant can be transferred or sub-licensed to (and the new license wording even drops the reference to a “limited license” in the current license wording although that phrase may be redundant) and doesn’t go into much detail regarding what “use” entails. The current license is more specific and allows Instagram 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 …

The new wording is pretty vague and broad and one interpretive question is what “use” encompasses in the context of the new wording?


This part of the new wording is pretty worrying. It concerns advertising revenue and the change from the current wording to the new wording is dramatic. The current paragraph 2 states te following (I added the emphasis):

Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

This sort of provision is pretty common. You get to use these services for free and, in return, the companies operating the services make money by presenting you with advertisements. You may not like it but these services cost money to operate and these providers have typically worked to maintain a balance between presenting advertising in the most compelling way with not alienating users. The new wording in the Terms of Use not only expand this mechanism, they change the model dramatically and with the result that you truly are the product. This is what the new paragraphs 2 and 3 say (once again, I added emphasis):

  1. 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.

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

Pseudo-endorsement ads on Facebook-2This model takes the advertising mechanism beyond simply displaying ads in a way that you can see them. It brings you into the advertisements by using your image, your photos and metadata like location as well as your actions (liking or commenting on something, perhaps) and associating that personal information and content with the advertisements. This is something Facebook has been doing for a while and it implies an endorsement. Paragraph 3 stops just short of stating that Instagram will use your content and personal information to imply an endorsement of a company or its products without clarifying that the advertisement is, in fact, an advertisement that was paid for or sponsored.

While the more conventional display ad model raises privacy concerns with how the ads are targeted, this new model potentially has privacy, reputational and even commercial implications for Instagram users. A person may not wish to be so closely associated with a brand or a product for various reasons. That person may already be associated with a competitor as part of a commercial arrangement or the brand or product the user is associated with through this advertising model may run contrary to the user’s beliefs and preferences. This new mechanism gives Instagram the ability to trade off your identity, personal information and your Content and it begs the question whether the cost of using the Instagram service isn’t becoming a little too high?

Facebook has a very similar mechanism in its Statement of Rights and Responsibilities:

About Advertisements and Other Commercial Content Served or Enhanced by Facebook

Our goal is to deliver ads and commercial content that are valuable to our users and advertisers. In order to help us do that, you agree to the following:

  1. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.
  2. We do not give your content or information to advertisers without your consent.
  3. You understand that we may not always identify paid services and communications as such.

Unlike the Facebook model (which is almost as invasive), the Instagram model doesn’t include an option to restrict this form of advertising using privacy settings in the wording itself. If you consider that Instagram is also available to minors from the age of 13, children under the age of 18 could find their identity, content and other personal information associated with brands and products without their knowledge (at least until their friends let them know) on the flawed assumption that they have their parents’ or guardian’s consent.

Other additions

The current Terms of Use pretty much stops at this point but the new Terms of Use includes a series of additional sections including the following:

  • Reporting Copyright and Other IP Violations;
  • Disclaimer of Warranties;
  • Limitation of Liability; Waiver;
  • Indemnification;
  • Arbitration;
  • Time Limitation on Claims;
  • Governing Law & Venue;
  • Entire Agreement; and
  • a very interesting section titled “Territorial Restrictions”.

This last section is a bit like the secret scene at the end of a movie. The premise of this section is as follows:

The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Instagram to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Instagram provides.

Immediately below this section is a copy of the current Terms of Use. What is odd about this is that there is no indication what purpose repeating the current Terms of Use has. Are the old Terms of Use meant to apply where territorial restrictions render the new Terms of Use unlawful or unenforceable? Was this just an error when the new Terms of Use page was prepared? It this was intentional it looks as if the current Terms of Use may be a fall back set of terms and conditions if the new Terms of Use is legally problematic in some region outside the United States.

Either way, it is very odd.

As you noticed, we haven’t dealt with the new Privacy Policy in much detail in this post. We’ll explore the changes to the Privacy Policy in a further article.