Tuesday, December 18, 2012

POLICY: We Are Not Lawyers But We Need To Be

If you were paying attention to the internet today, Instagram rolled out some upcoming changes to Terms and Conditions, and got slapped around because of the perception that it would allow them to sell your photos to companies for use in advertisements. They've put up a notice explaining that this was not their intention, and that they're going to rewrite the language to make it clearer:
The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question. 
Ownership Rights Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.
I'm curious about how this will turn out after the rewrite -- after all, it's all well and good for them to talk about intentions but the proof is in the pudding -- but I have two thoughts coming out of this:
  1. Instagram users, and Facebook users, and iTunes users, are not lawyers, but they need to be. The issue is that legal language is not the same as the English language as it's commonly used, and it's especially confusing because it looks like English. One of my colleagues at my day job who deals with contract language all the time said that "Grammar has nothing to do with contracts" -- it all has to do with the consistency of the way the words are interpreted. A lay person can probably understand most of what they read in a contract, but may not. But each of these seemingly dry changes to legal languages may have deep impacts on your actual rights as a user of these platforms.
  2. Our legal system is built adversarially, and it doesn't quite work in this space. Contracts, usually, are agreements between two parties. That means that lawyers from both sides work on language that they both feel comfortable with, and that both sides have a similar understanding of. (When they fail, we have lawsuits). Having listened to corporate contract negotiations, verbiage and wording is something that both sides will put in input on -- trying to imagine the ways the wording could be interpreted and refining the verbiage until both sides are comfortable. When it comes to social networks, we're not really at the table. The only example of another model is Facebook's governance votes, but again -- it's not from a perspective of equal footing. Certainly, users are not proposing their own language to Facebook. At best, we can only revolt when it goes too far.