By Jamie Nicole Johnson* and Shruti Panchavati**
Although Instagram’s new Policy has abandoned some of the changes, the company continues to cloak over-reaching provisions with deliberately vague terminology, leaving concerns regarding a user’s ownership and privacy far from settled. To protect users, social media platforms should be required to provide users with more transparency, traditional copyright laws should provide greater protection for user-generated content, and binding legal agreements should be disclosed to users at the outset, in a way that most users would understand.
Social media platforms have zealously reassured users of their ownership rights and, not surprisingly, consumers are relieved to hear that what they share, they own. However, a closer look at Instagram’s Terms reveals the actions the company may take to profit from the free service.
A. Granting a License—So What?
Like its Facebook counterpart, Instagram invariably recognizes that users retain intellectual property rights to the content posted on the platform. As described in its Terms, Instagram “does not claim ownership of any [c]ontent [users] post on or through the [s]ervice.” It is the most clearly written line in the Terms and also the most illusory. Instagram does not claim ownership because it does not need to. Instead, the Terms state that each user “hereby grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the content that [he or she] post[s].” Put more simply, when content is posted or linked to the service, Instagram becomes the licensee and the user becomes, in a very particular way, the licensor. Moreover, Instagram can reassign the rights or relicense the work to any other party, presumably for money, without notice and without compensation to the user. This overreaching contractual agreement raises many legal concerns, but one thing is unmistakable: ownership is a trivial distinction.
There is widespread confusion regarding licensing and the value of granting a license, which awards services, such as Instagram, the potential to commercially exploit uploaded content, despite lacking ownership of it. For example, imagine an aspiring photographer who uploads her images on Instagram in the hopes of sharing her work, expanding her fan base, and eventually gaining fame and recognition. Instagram then uses one of her photographs in conjunction with an advertisement and gains large amounts of revenue. It seems only fair that she, as the owner, should be able to sue against such use or, at the very least, receive a share of the revenue that the use of her work generated. Nonetheless, in accordance with its unlimited and royalty-free license, Instagram is legally permitted to sell her work for profit and owes her no compensation. Even if she were to deactivate her account the next day, Instagram may retain her photographs for a “commercially reasonably time”—that is, however long it wants. By agreeing to the Terms, users may indeed retain ownership rights, but Instagram has almost limitless potential to monetize on their intellectual property.
Arguably, most social media sites know better than to sell prints of user photographs; it would be a poor public relations strategy. Regardless, these types of terms provide a legal loophole whereby companies could freely sell user-generated content if they wanted to.
B. Legal Pitfalls
Users seeking to pursue an infringement claim against social media sites may find that traditional copyright laws provide little in the way of a workable legal remedy. To pursue a claim for statutory damages or attorney fees, the copyrights at issue must have been timely registered with the Copyright Office. For the typical Instagram user who is not aware of copyright requirements, the result is that Instagram and related social media platforms can regularly exploit user-generated content. In addition to disrupting copyright and industry standards, companies may also breach privacy policies without fear of any significant legal repercussions.
A. What Information Is Collected?
Instagram’s Policy, effective January 2013, reads: “[w]e 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”).”
To the typical user, the phrases “device identifier” and “log files” may seem irrelevant or mechanical, but by agreeing to the Policy, a user grants Instagram permission to track their every move, even actions outside of the application. “Log files” and “device identifiers” are files of information that create a story about how a user browses the application. Examples of the information collected include: links clicked, quantity and content of pages viewed, time spent per page, and more.
“Data” is a reference to “metadata,” one of the most controversial aspects of information sharing. “[M]etadata can describe how, when and by whom a piece of user content was collected and how that content is formatted,” as stated in Instagram’s Policy. Put more simply, metadata is an information-gathering tool that gathers background information from user content. For example, imagine a user uploading a photo from her iPhone to Instagram’s mobile application: she takes the photo, uploads it to the service, includes a description, a few hashtags, a location, and maybe even tags a friend—this is the content that was posted and that was meant to be shared. However, what Instagram collects is her metadata—the information embedded in her image: her longitude and latitude, ownership and copyright information, her contact information (possibly including her contacts’ contact information), camera settings, phone and photo specifications, and other descriptive information. The result is that Instagram knows more about the user than she does, and she is likely completely unaware of the information the site has gathered. This practice exposes users to varied security risks and poses a serious threat to a user’s privacy.
In addition to Instagram having power over your user story, it also collects, stores, and uses your extraneous private information including but not limited to: email addresses, contact information, gender, likes/dislikes, age, sexual preference, habits, education, and location. While Instagram claims that its purpose in collecting such information is to provide a better user experience, the Policy provision on information sharing, discussed below, directly undercuts the stated purpose.
B. How Is the Information Used?
Instagram’s Policy allows for user content and information to be shared broadly with affiliates, third-party organizations, and advertising partners—an essentially limitless list of entities. There are no defined criteria for who may access private user information, and there are no restrictions on what entities may do with the information once received. Companies are free to deliver targeted advertisements, give information to government agencies, and sell information without compensation. Instagram even has the ability to share information beyond the termination of a user’s account, as information can be stored for a commercially reasonable amount of time.
Many users, including commercial users, resisted the idea of Instagram capitalizing on user content without compensation to the user. Following the backlash, Instagram adjusted its Policy to the following: “[w]e will not rent or sell your information to third parties outside Instagram (or the group of companies of which Instagram is a part) without your consent, except as noted in this Policy.” Instagram implemented this language to put users at ease, stating in an interview that: “[i]t is not [Instagram’s] intention to sell your photos.” The Policy’s language directly conflicts with Instagram’s stated intention, as the language allows the service to sell user information with user consent, and users cannot use the service without such consent. Unfortunately, users assume the colloquial message delivered by Instagram expresses the core of the Policy, but users are deceived into believing that their information is protected when in actuality Instagram has manipulated the language of its Policy to their advantage.
Changes in the law are consistently out-paced by changes in emerging technology; this allows platforms like Instagram to regularly impose overreaching provisions behind vague and unfriendly terminology. In the absence of any legislative guidance or privacy laws, such services are left to run wild with their policies and, as a result, unknowing users are being stripped of their rights with a casual click of a button. Traditional copyright laws should provide greater protection for user-generated content, and online services should be required to provide users with more transparency where an individual’s ownership and privacy rights are concerned. This approach would effectively balance the interests of the public with the goals of the online services.
* J.D. Candidate, University of Illinois College of Law, expected 2016. M.B.A Candidate, University of Illinois College of Business, expected 2016. B.A. Business Administration, Seattle University, 2012. I thank the editors of the Journal of Law, Technology and Policy for their time, attention, and efforts regarding the creation and excellence of this piece.
** J.D. Candidate, University of Illinois College of Law, expected 2015. B.S. Psychology with Neuroscience Option, Pennsylvania State University, 2012. I am grateful to the editors of the Journal of Law, Technology and Policy for their advice and insight while writing this piece.