By Wendy LewisLewis

The recent Instagram debacle that was initiated by a blog post about new terms of service has erupted into a huge outcry, and a class action lawsuit has now been filed in San Francisco over whether Instagram should be able to use your personal photos to make money. This incident has drawn increased attention to an unresolved battle over privacy concerns around using a free service that lets you connect with others across the free world.

Although Instagram’s co-founder, Kevin Systrom, tried to put his finger in the proverbial dike by reassuring users that their “content” belongs to them, many users remain conflicted. He pointed out that “Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services.” (http://instagram.com/legal/terms/).

The question of ownership, however, is open to interpretation. We may indeed “own” our content, but that does not prohibit others from using it, sharing it, altering it, or repackaging it. The fact that Facebook owns Instagram thickens the plot because the trust factor has been eroded.

It is important to note that Instagram is a free service. The business model of free Internet services relies solely on taking advantage of user data, including user-generated content. As an example, Facebook makes money by letting advertisers direct marketing messages toward prospective customers based on their preferences, interests, and who their friends are. Facebook has stated that it does not “own” any of our content, but it is their most valuable asset. The primary revenue stream for Facebook, Twitter, Klout, and other platforms like them is through paid advertising. Invariably, Instagram will soon jump onto the ad bandwagon, too. In a nutshell, these businesses treat your data and content as a commodity, which they try to leverage to create a revenue stream to prove their value to investors and potential partners. There is nothing new about this concept. So can you really ever trust a company whose business model is based on using your stuff to make money? Probably not.

What is Instagram?

Instagram-Like Sites

  • Flickr
  • PicYou
  • Hipstamatic
  • Snapseed
  • Twitpic

Instagram is brilliant in its simplicity. Basically, it provides a platform to change, personalize, and sharephotos taken with your phone. It allows you to enhance colors, make the background blurry or add a frame, and then to share your photos with other Instagram users and Facebook.

Instagram is not the only game in town. There are many alternatives, and likely others in development because they see the Instagram public relations nightmare as an opportunity to sweep into this space. Instagram is not Facebook. You don’t have to be on Instagram, and it doesn’t have anywhere near a billion users.

Intellectual Property Debate

There is no industry standard to rely on for who owns what yet, and policies are evolving as quickly as social networks are expanding. It has become unmanageable to stay on top of the terms and conditions of every social network, and most of us don’t have the bandwidth to review them. Do not expect that any of these platforms is obligated to notify you when their terms of service change, either. It is your responsibility to keep up with all of this.

Clearly, intellectual property and copyright lawyers stand to be the ultimate winners in this game, and the stakes could be high. However, for those of us who spend an inordinate amount of time and energy in the social world, it is good to know where you stand.

Once you put something online, you can expect that it is out of your control, regardless of the terms of service. Content that you create and then post to Facebook, Twitter, Pinterest, or anywhere else may technically still be yours, but you have opened the floodgates for anyone to infringe upon your rights by copying your work, even though you haven’t given up those rights. Assuming that you do own the copyright to anything that you produce, stopping others from plagiarizing it can be difficult, if not impossible. Here is the catch: If you post it and change your mind and delete it, is it really gone? If your content has been shared, essentially you cannot take it back, so the answer is NO. Most of these sites work in a similar way. The content you added does not suddenly disappear even if you delete your account because anything that has been reposted by others will still be accessible.

If you are not happy with this concept, you can, of course, delete your content or shut down your account in protest. There is also a mechanism for recourse if you stumble upon someone having infringed on your rights. You are welcome to send your complaint and state your case in writing to the contact information provided on the site for this purpose. But don’t sit by the phone, because none of these so-called “free” sites have a toll-free customer service line to call, and it can take days to weeks to forever to get a response to an e-mail in some cases.

Following is a summary of your rights, or lack thereof, in these unchartered waters:

Facebook

https://www.facebook.com/legal/terms

According to Facebook’s Statement of Rights and Responsibilities, “You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.” You can sense the “but” coming next. You do give Facebook certain rights that include, “You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

Twitter

https://twitter.com/tos

The nature of Twitter is that it encourages sharing or retweeting of your content. “You should only provide Content that you are comfortable sharing with others under these Terms.” Among its “Tips” are these: “What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!,” and “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

Pinterest

http://pinterest.com/about/terms/

Pinterest clearly states, “If you post your content on Pinterest, it still belongs to you but we can show it to people and others can re-pin it.” Pinning or, in effect, posting your content is essentially granting Pinterest a license to move it, change it, display it, or otherwise use it, but you still own anything you owned originally.

YouTube

http://www.youtube.com/static?template=terms

Google owns YouTube, and therefore both sites share the same privacy policy. To upload video content to YouTube, you are required to represent that you have the right to post the content and are not infringing on someone else’s intellectual property. You also grant YouTube a “worldwide, non-exclusive, royalty-free, transferable license (with right to sub-license) to use, reproduce, distribute, prepare derivative works of, display, and perform that Content in connection with the provision of the Service and otherwise in connection with the provision of the Service and YouTube’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any
edia channels.”

’Til Death Do You Part

Now consider this: If your original content has so much perceived value, then who owns your content and social networks after you die? Does it revert back to your estate, or does death relinquish any rights you may once have had to your content? Should we be planning for our social media content in the afterlife next?

The law is unclear in terms of who has the right to access a user’s social media profiles after the user’s death. In other cases, your estate and/or beneficiaries would inherit any intellectual property rights that survive you. However, as the law is in a state of flux on these matters, I have a suspicion that it won’t be as simple to go after a loved one’s copyright for blog posts or for your heir to gain access to your Facebook and Twitter posts after
you are gone.

Since you can’t take it with you, there is a site for that, too. Enter http://www.legacylocker.com, which is described as “… a safe, secure repository for your vital digital property that lets you grant access to online assets for friends and loved ones in the event of loss, death, or disability.”

It’s definitely something to think about.

Lewis-bio Wendy Lewis is president of Wendy Lewis and Co Ltd, Global Aesthetics Consultancy http://www.wendylewisco.com, author of 11 books, founder/editor in chief of http://www.beautyinthebag.com, and contributing editor of PSP. wl@wlbeauty.com.