Tuesday, December 18, 2012

Dear Instagram -- Don't Mess With Kurt Opsahl.

It's always nice to hear from readers -- and it's even better when they suggest good topics ...

One thoughtful friend pointed out a news story about Instagram today. I'd noticed headlines on the subject earlier, but had kind of figured they were all spin by corporate executives. I somewhat subconsciously usually do what Felix Salmon described earlier this week, in that I start with the dual questions: “who is the main source for this story” and “what is that person trying to achieve.”  I figured the first answer would be "a Facebook competitor," and the second would be "slam their stock."

I was wrong.

Kurt Opsahl.
The main resource for this story was Kurt Opsahl. Kurt's a lawyer at EFF, and he's been around for a while -- to put his career in context, he was involved in litigating the Arriba Soft case, which I actually wrote about when I was in law school.  When Kurt writes about something, it's safe to say he's generally not engaged in a pump-and-dump stock manipulation scheme.

One interesting thing about the Arriba Soft case is that you couldn't have worked on it and not realize that a social network will need to obtain nonexclusive licenses to the photographs its users upload, in order to display those photos and redistribute them -- in the early days of the web, people relied on "implied licenses" to do that, and of course, like all such things in law that are "implied," what the courts really meant was "we've just always done things that way."

But social networks, well, they can't exactly rely on tradition, and so they have to have explicit licenses.  And their attorneys draft the language as broadly as possible, because frankly, they have no idea what rights they're really going to need even 18 months down the road, and they're careful people trying to play football on a field with moving goalposts. So you get very broad grants of rights in these "clickwrap" types of agreements.

"Instagram's New Terms of Service to Sell Your Photos"
Kurt Opsahl, Electronic Freedom Foundation

Of course, the real thing the lawyers have to guard against is that their contractual language doesn't let them do something that their competitor can do -- that Google will be able to roll out a killer service because their TOS (Terms of Service) is more expansive than Instagram's, and playing catchup legally will take six months when advantages in the Valley are measured in weeks.  What needs to happen, then, is for a neutral party to say "hey, you're going to scare off all the users if you write ridiculous TOS like that, here's what a reasonable such service should look like."

Enter Kurt.

Kurt has pointed out that there are three key things that every user of a social network deserves -- the kind of things that a social network must have if it is not to alienate its users in the long run.  They aren't that complicated:

  • The Right to Informed Decision-Making
  • The Right to Control
  • The Right to Leave.
Instagram's TOS didn't have any of these -- they aren't even close, and Kurt pointed that out, too.  Instagram responded, but hasn't changed anything yet. 

The one thing I'd observe is that, perhaps surprisingly for professionals in the copyright field, is the degree to which the executives at Instagram probably weren't originally all that aware of their terms of service in the first place.  In the old days, it's startling to realize how frequently the TOS was an afterthought at a startup.  I suspect that Instagram's initial terms deviated significantly from those that a reasonable and prudent attorney familiar with the field would have recommended -- chances are that the drafting "team" was an intern cutting-and-pasting a competitor's TOS into Instagram's HTML.

Enter Facebook, and their (very professional) outside counsel.  Those lawyers like following rules, and they know that the Instagram terms just didn't cut it.  Their clients, locked in a running battle with deep pocketed corporate titans (Apple, Google), want them to push the envelope as far as is reasonably possible, but no further. As those attorneys found out today, that's a tough task when the parameters of the envelope are unknown, and perhaps unknowable. 

People like Kurt drawing attention to issues like this one is a very big part of how we figure out what will be reasonable going forward.  Certainly, it is clear that we should give kudos to EFF -- this is the second day in a row their work is showing up here.  I can't imagine this is the end of the road for the Instagram TOS issue -- this one will crop up again and again -- but I'll certainly be keeping an eye out for Kurt's take, if I want to know what the practical consequences are going to be. 

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