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Wednesday, December 19, 2012

Why You Should Read a Social Media Site's TOS

It started in February with a blog post by an attorney and photographer who said she would "quit" Pinterest because of her concerns of legal liability by "pinning" photographs from the web to her Pinterest page.  Pinterest is a social networking site that allows users to create pages and "inspiration boards" where they can "pin" photos and other images to their virtual corkboard.  She was concerned with two issues relating to Pinterest's terms of service (TOS).  First, the TOS required all users to represent and warrant that all material pinned on Pinterest is owned by the member user.  Second, the TOS required all users to indemnify, defend, and hold Pinterest harmless if any lawsuit was filed against Pinterest for copyright violations.  She was concerned about the lack of any mention of a "fair use" exception, as well as the broad nature of the indemnification provision and decided to delete her inspiration boards from her Pinterest page.  This would not have created much buzz, except she wrote about her experience on her blog and the Wall Street Journal picked up the story. Ultimately, she kept her Instragram account, but deleted her inspiration boards.  

Fast forward 10 months and now the issue is with proposed changes to Instragram's terms of service.  Instragram is a social networking site where users post photos for others to see, "like," and share comments.  Instragram announced this week that it will modify its TOS to allow Instragram to use, display, or sell its members' user names, likenesses, photos, and activities for paid or sponsored content or promotions.  No compensation will be paid to members for the use or sale of their content.  Instragram will also be able to share users' information with Facebook, which company now owns Instragram. These changes would be effective January 16, 2013, so users have less than a month to decide whether they are ok with the possibility that their photos may be sold and used for commercial purposes, without their consent and without payment of any compensation.

In response to an outpouring of opposition to the proposed changes, Instragram appears to be backing off from its initial proposal to change its TOS.  Late Tuesday afternoon, Instragram posted on its blog that it would revisit the proposed changes to make it clear that it has no intention of selling users' photos. 

While social media users are getting used to the proliferation of ads on social networking sites and elsewhere on the internet, social networking sites will need to tread carefully in instituting changes that affect a user's expection of privacy and ownership of the content the user posts on FB, Instragram, and other popular social networking sites.

Post Authored by Julie Tappendorf, Ancel Glink


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