Blog Post

Instagram says ‘self-help’ best option for woman suing over photos — and it’s right

A mighty fuss broke out in December when the media accused Instagram(s fb) of changing its terms of service to claim ownership of users’ pictures. In response, celebrities vowed to quit the popular photo-sharing service and, this being America, people started suing.

Two months later, what’s the fallout? Well, nothing. Instagram’s new rules went in place in January and the site appears popular as ever (based on my own experience and Facebook’s optimism on a recent earnings call).  Meanwhile, Instagram this week issued a stinging rebuke to Lucy Funes, the California woman who is leading a class action suit against it.

In a filing to dismiss the suit, Instagram’s lawyers said the case was based on “wrongheaded, even frivolous, legal theories.” The document, reported by Reuters, added that Funes’ alleged injury was “self-inflicted” and pointed to “her failure to take the self-help measure of deleting her account.” (our emphasis)

The comments are harsh but also fair. Instagram, and every other social media company, is right when it points out that no one is forcing people to use their service and that, if you don’t like their rules, you can just leave. Instagram notes that Funes is still using the service.

This take-it-or-leave-it approach may be exasperating to consumers who feel powerless as Facebook and others turn them into product pitchmen (Instagram will follow suit soon enough). But for now, the licenses these companies impose ensure the law is on their side and, as long as people don’t pay for sites like Gmail(s goog) and Twitter, advertising is the only option that will sustain them.

Unfortunately, companies that do try to be transparent about their advertising intentions are likely to be punished for their efforts. As Verge reporter and former copyright lawyer Nilay Patel explained in December, the controversy over Instagram only creates an incentive for companies to be obtuse or sneaky about their terms of service in the future.

This doesn’t mean, of course, that everything is okay. Instagram and the other companies do pose serious threats to our privacy, data and dignity. But until there is a system in which consumers have an option to pay these companies to leave us alone (would you pay $5 a month for ad-free Facebook? — I might), this is the world we’re stuck with.

The Instagram episode ultimately reflects a familiar pattern of hysteria, resignation and forgetting. There will be other examples soon enough.

4 Responses to “Instagram says ‘self-help’ best option for woman suing over photos — and it’s right”

  1. Asinine. Putting the burden of deleting the account on the user is ridiculous. The next time Instagram execs go out for lunch, the valet should walk by their table and casually announce, “BTW, we’re selling you cars. If you want to finish your lunches, that’s up to you but if you don’t move your cars, we’re selling them.” – and when they get to the valet station, maybe it’s really hard to find their keys. I’m sure the Instagram execs won’t mind since it’s in spirit with the thievery business model.

    And BTW, if you’re commenting via gigaOM, you’ve given them the right to update your profile.

  2. David Thomas

    Yeah, the same argument is made on behalf of the fast food companies — you don’t have to use them because we live in a self-select market. I feel this way about FB, because it is too much work to maintain privacy with the way they change rules all the time…oh, wait a minute — hmmm, yeah, that’s a problem for consumers who provide their content to websites, isn’t it. Changing terms AFTER data collection or BURYING options in legal minutia isn’t going away, and perhaps the courts are not the right vehicle, but we are certainly seeing a need to create more extensive federally mandated web-user protection rights. Won’t services like Instagram love that?

  3. So someone please help me out. If an advertising agency wants to use a photo of someone…if they are recognizable at all…even remotely…the agency must either get a release or pay for permission to use the photo of that person in an ad. It’s the law. They may even have to pay union wages for “talent” on such a preexisting photo.

    If an ad agency wants to use a photograph taken by a specific photographer, they must pay compensation. Seems fair. They are using that person’s work to make money.

    And yet when companies like Facebook and Instagram do the same thing, they get a free ride. They don’t have to pay.

    I get why users are upset if a company wants to take their photos and claim free use of them. I’m pretty sure if I want to claim free use of the songs in iTunes I can’t just take them for free. I must pay.

    The MPAA and the RIAA make SURE consumers pay for any use of the content works of their members.

    The concept of fair use for consumers has pretty much disappeared. But apparently just taking the digital content of consumers is OK.

    I understand that advertising supports nearly all the free services. The quid pro quo of here’s our free service, but you must watch advertising to pay for it has been around for a long time (see network TV). But I still don’t see how companies can just claim fair use of the content created by their users as if it was their own.

    …but if people just keep letting them do it….I guess they can get away with it.