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    Instagram Rewrote Its Terms of Service, But the New One Still Isn't Great

    Written by

    Derek Mead


    After the Internet collectively flipped shit over Instagram's new Terms of Service, the company has updated the ToS to roll eliminate one of its most contentious clauses, the one that discussed licensing users' photos:

    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.

    I suppose that's yet another sign that the Internet can make an incredible ruckus when it wants to–if only consumers could be so vocal in all economic environments–but there are still some irksome privacy issues, including Instagram's policy with minors and users' ability to sue the company. HuffPo and Reuters both have nice breakdowns of those issues, while Chris Davies at Slashgear called Instagram lazy and sneaky, if you want to read something bloodthirsty.

    But the thing that I feel has kind of gotten lost in this whole mess: Photographers, as a whole, are some of the most informed and obsessive when it comes to copyright online, and photographers are likely the people who started the whole uproar in the first place. And it was right for  them to be angry.

    The issue with Instagram's ToS change isn't so much of one of privacy; as a million commentators have noted, pretty much every social site has an irksome ToS, and you shouldn't expect that anything you put on a social network is going to remain yours. Nothing is truly private online, right?

    But this is a different case. While Instagram wouldn't have slapped your terrible cat photos on a Miller Lite billboard somewhere, the ToS change, while admirably straightforward, clearly signaled that the company planned (and probably still plans on) monetizing users' images

    The simple fact is that delivering ads online isn't particularly lucrative. That's why we've seen the rise of sponsored posts on Facebook and promoted tweets. Those ads are annoying because they include the names of users who have liked or followed the company paying for the ad. Companies like it, and thus pay a premium for it, because they're more visible and also imply a sense of approval from your peers; some users don't like it because their name is being attached to an ad, but many don't like it. And, at the very least, there's an easy way out: Don't like and follow random companies.

    But because of how Instagram is designed, at least right now, those strategies won't work too well on Instagram. I mean, it wouldn't be hard to toss an ad inline in people's streams, but that's nothing more than a banner ad. And while a company could build a presence on Instagram, have tons of people like it – plenty already do – it's not easy to do organically. Pabst is good at it, but what about Walmart? It's a lot easier to write generic ad copy for tweets than it is to produce interesting photos.

    So the other option is what the old ToS seemed to signal: the ability of companies to pay for exposure through users' content. For example, imagine if Target sponsored the #christmas hashtag. While it wouldn't put its logos on pictures or whatever, all of the people scrolling through that feed, or posting to it, are essentially filling a Target page with content at that point. That's a huge leap from attaching your name to a company's boilerplate post; instead, they're paying Instagram based on the expectation that users will do the content creation.

    While this may not matter to most users–and many might like it–it absolutely affects professional photographers, who use Instagram as part of their business like any other platform. For example, imagine if Kay Jewelers (all of the firms I'm listing are absolutely random, so no one freak out) sponsored the #wedding hashtag, which, as of right now, has nearly three million pictures. That's by virtue of the fact that weddings are a huge source of cash for the photo industry, and because it's competitive, promoting your work through Instagram can be huge for one's exposure.

    It's inherently frustrating, then, to think that one's professional work could be put to use to lend credence to an ad campaign. And yeah, in this scenario you could opt out by not posting to a hashtag, but when Instagram's only lifeblood for sharing and discovering new photos is hashtags, that's crippling. In any case, moving having companies pay to broadcast users' approval via sponsored posts to licensing users' content–and companies paying to advertise a hashtag is exactly that, because there'd be nothing there if users' didn't create said content–is quite a leap.

    The end argument of all is it's Instagram's service, and they can do what they want with it. But so can users. As a social network, Instagram's ToS is kind of troublesome, but no more troublesome than any other network, and I'd agree that in that sense, the new ToS language may have been better. But Instagram is a photo network, which opens up a whole different level of scrutiny from photographers that are extremely cautious over how their photos are used.

    So what's the answer? Well, as I argued before, there are enough other options out there that are more clear about their plans to use, or not use, images, so if you're stressed, go ahead and quit. But if you're willing to think of Instagram as a social network, and not one for photos, then perhaps it's not such a big deal. In any case, Instagram hasn't been particularly clear about what its new ad model is going to be, but there's certainly one on the way, and I won't be surprised if it takes a step further towards integrating user content and companies than even sponsored posts.