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The Consequences of “Saying Cheese” – Instagram and Clickthrough Agreements

Instagram LogoFirst, there were “shrink wrap” contracts – contracts accompanying physical products, such as software, in which the consumer “agreed” to to the contract by breaking the shrink wrap.  In the digital age, we have become accustomed to “clickthrough” or “clickwrap” contracts – the user agreements requiring us to click OK in order to, say, download the latest version of iTunes.  (And let’s be honest here – just as with the shrink wrap contracts, not many of us can claim to carefully read these before clicking OK.)  In legal terms, these are considered contracts of adhesion, a “standardized contract form offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording consumer[s] realistic opportunity to bargain and under such conditions that consumer[s] cannot obtain [the] desired product or services except by acquiescing in form contract” (Black’s Law Dictionary, 6th ed.).  Due to the lack of bargaining power, courts may be lenient when it comes to particularly outrageous provisions in these contracts, but by and large they are not considered unconscionable.

To say these types of contracts are commonplace today would almost be an understatement – there are very few products you can download or internet services you can sign up for these days without encountering such an agreement.  However, as recent news reminds us, the savvy person will make an effort to know what s/he is signing up for.  This week, Instagram, a photo-sharing service that makes it simple to share photos taken with your phone, has come under a great deal of heat about the recent changes to its user agreement.  In particular, the following language has come under fire:

“Some or all of the Service may be supported by advertising revenue.  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.”  Instagram Terms of Use – Rights, #2 – effective Jan. 16, 2013

This language is in contrast to the provision’s previous version:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.  The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.”  Instagram Terms of Use – Proprietary Rights in Content on Instagram, #2 – in effect until Jan. 16, 2013

Comparing the two provisions, they do not seem all that dissimilar.  Other provisions in both versions of the Terms of Use unequivocally state that ownership of the photos remains with the user.  However, the new provisions make clear that Instagram can financially profit from advertisers buying certain rights to your photos and information (such as username) to advertise their products.  While many Instagram users and news sources declare these changes to be an outrage and an invasion of privacy, others see it, as does Instagram, as the service’s move to be more fully functional within Facebook, which bought Instagram in September.  For example, with these new provisions, advertisers would be able to use your Instagram content to create ads for Facebook such as “6 of your Friends like this product.”  As anyone using Facebook knows, Facebook already does this; since Instagram is owned by Facebook, this change does not seem to be as great a shock.

What will be more interesting, perhaps, is to see how else the language of these new provisions can be interpreted.  Beyond Facebook advertising, what else might advertisers be able to do with your content?  Given the immediate backlash, will Instagram simply back off and retain its current Terms of Service instead?  With the story still in development, only time will tell.  If nothing else, this is a great example of the risks of clickthrough agreements and a lesson in safe consumerism.

Traveling for the Break

With finals just about over many of you are probably looking at getting out of town for the winter break.  For those of you who are flying, Legal Blog Watch from Law.com has some advice—a series of 27 volumes of Things You Can’t Do on a Plane.  Stay safe, have a wonderful holiday, and don’t do any of these things on planes!

We Want a Death Star!

The White House has created a means by which the American people can voice their concerns on any range of issues and urge POTUS to take action.  “We the People” is the site where you can create a petition or browse and sign other petitions.

According to the How & Why, “If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.”

I wonder what the official response might be to the petition urging construction of a Death Star.

As of this posting, the Death Star petition has received over 1,400 signatures.  This petition suggests that “[b]y focusing our defense resources into a space-superiority platform and weapon system such as a Death Star, the government can spur job creation in the fields of construction, engineering, space exploration, and more, and strengthen our national defense.”

Check out some of the other pending petitions, which include the following: