Comment by potatolicious | Hacker News Reader

Comment by potatolicious | Hacker News Reader

This seems like an overreaction. Or perhaps more accurately, this seems like a too-late reaction.

Instagram's TOS before these sweeping, far-reaching changes was already hostile to photographers. You granted Instagram a transferable, sub-licensable, perpetual license that has no expiry or termination condition, ever the moment you uploaded something.

The terms of the license you grant Instagram is about as broad as it gets, and reaches substantially further than just about any reputable photo sharing service out there.

For example, Flickr and 500px's TOS gives them license only as long as you hold the account and the image hasn't been deleted. Deleting your account or the photos themselves is revocation of their usage rights. Instagram is bound by no such rules.

By posting to Instagram before the new TOS NatGeo already exposed their photographers to tremendous IP risk - one can only hope NatGeo themselves hold the right to grant an irrevocable, perpetual, sublicensable license to the photos in the first place.

I'm glad to see companies with photographer-hostile TOSes getting called out for the tremendous overreach in their legalese, but this isn't really new, Instagram was like this from the get-go.

It's an overreaction with only upside though, since the only two possible outcomes from their overreaction are (1) TOS remains the same or similarly ominous, or (2) the TOS becomes more benign as a result of NatGeo's and others' overreaction.

If (1) is going to happen anyways, then there's no downside to at least posturing an overreaction.

I think it's more about trust. The TOS might have been more permissive before but we trust instagram not to do anything too crazy.

The new TOS, although less permissive overall, signaled a specific intent to do some crazy things.

Especially in light of new ownership, the trust is being strained.

Why do you have to trust them in the first place?

I tell you why, because their ToS is malformed otherwise you wouldn't have to trust them, you would only need to agree that the contract you signed with them is respected accordingly, by them as well as by you.

>their ToS is malformed otherwise you wouldn't have to trust them //

License terms have a certain purpose behind them just like the law and just like the law unless you specify ever possible scenario then you have apply generic terms. The level of depth varies but a license that considered all possibilities - and so wasn't 'malformed' would be very difficult to work with.

So a company needs a certain level of freedom so they can disclaim copyright infringement in circumstances such as showing adverts alongside your work. But that level of freedom means they could by the letter of the agreed terms use your images for advertising, but the company have told you that's not the purpose of the clause and that they don't intend to do that.

So you're fine as long as the company continues to act ethically. There's possibly an implied license, worth the paper it's written on, etc., etc.. Should they really go in to specifying what "alongside" means and the relative proportion of advertising text on a page and whether advertising overlaps; whether an interstitial (lightbox) based ad would be allowed if it showed some of your image through the semi-opaque background; whether adverts for the site that say had a glimpse of one of your images in the background were allowed; suppose there's a trade show and you happen to be friends with a speaker and your image shows in their timeline ... is that within the letter of the terms. And so-on and so-forth.

This is why trust is important to save wrapping up our entire lives in legalese.

If a company respects it's clients as people, then even if there is a loophole in the ToS whereby they can screw those people up they won't.

> "So a company needs a certain level of freedom so they can disclaim copyright infringement in circumstances such as showing adverts alongside your work. But that level of freedom means they could by the letter of the agreed terms use your images for advertising, but the company have told you that's not the purpose of the clause and that they don't intend to do that."

The beauty of legalese is that we can have our cake and eat it too.

In fact this is precisely what many image hosts do - they enumerate the allowable uses for your copyrighted material, instead of imposing a blanket, kitchen-sink allowance.

If you want to profit off of advertising while displaying my photo? Put it in the document, that's fine. Just don't go around asking me to essentially sign all of my copyright over to you.

National Geographic has held interest in the rights to photographs for a quite some time. They have long and continuing relationships with experienced attorneys specializing in this area. They have nothing to gain from cutting off their brand from the general public.

This appears to be a reasoned response.

Precisely my point - NatGeo is historically very conscientious of the IP surrounding their photography, but not this time.

Before the latest Instagram TOS controversy their TOS was already a travesty for photographers, where was NatGeo's objection prior to this? And why did they grant irrevocable, sublicensable, transferable licenses to a whole bunch of photographs already?

This seems like jumping on the bandwagon way too late. NatGeo should never have used Instagram with the copyright license as it was - the latest TOS changes simply made an already overreaching agreement even more egregious.

It is my understanding that historically, terms of service are derived from the fact that a service provider might host multiple copies of an image across different servers and transfer the image between servers, as well as generate and transmit many copies to user's browsers.

In other words, the basis of the TOS was what was necessary to provide the service and what was monetized was the service.

In contrast, my understanding of the new Instagram TOS is that it could readily allow for the direct monetization of the content outside of the service provided to the photographer. It requires the copyright holder to give up rights beyond what is strictly necessary to provide service to the user.

However, in a sense I agree with you. Google's new standard terms of service appears to allow the possibility of something similar in so far as the user grants usage rights to future Google services.

I, of course, am not a lawyer.

Why do you assume photo redistribution is National Geographic's concern? Perhaps they are more worried about the ToS changes allowing Instagram to sell off use of the National Geographic brand within the service.

The ToS currently read "Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content". Switching to "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" plus "You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such" seems to give Instagram greater latitude to advertise with the identities of the service's users rather than just the content they have shared.

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