Class Action Lawsuit Filed Against Instagram Because People Still Don't Like Its Terms Of Service

from the and-some-class-action-lawyers-want-to-get-rich dept

We've discussed plenty of times how class action lawsuits too often are about nothing more than some lawyers shaking down a company, hoping for a "settlement" in which the lawyers make out with millions while the "class" they represents gets very little, if anything. Yes, the class action system serves a purpose, but it seems like it's way too easily abused. Any time anyone gets upset about anything you can expect a class action lawsuit to be filed within days. Indeed, you may recall last week there was a but of a hubbub around Instagram's planned new terms of service, which really didn't say anything that new or surprising, but the online world ran with it in full outrage mode. In response, Instagram agreed to change the new terms and eventually agreed to keep much of the existing terms of service in place.

However, it appears that wasn't enough to satisfy some class action lawyers, who quickly whipped together an angry lawsuit about how awful (just awful!) Instagram's terms of service are. You can read the full complaint here and try not to laugh as the lawyers try to come up with any theory under the sun as to why the terms are somehow breaking the law. The lawyers are arguing that a small change in the standard boilerplate language used by nearly every single service online is some sort of breach of an "implied contract."

They also argue that merely putting into the terms the idea that you agree to allow them to use a photo in association with an advertisement constitutes a violation of California's publicity rights law. That's somewhat insane. The way you get around violating a publicity rights claim is to get people to license their works, and now these lawyers are arguing that in trying to get Instagram users to licenses their works, that alone violates the publicity rights law? Really? That's like saying that it's illegal for you to enter my house without signing a contract, but the second you ask for the contract, that's considered trespassing.

In the end, it's difficult to see what actual damage they'll show has occurred here. And there's a simple existing solution: if you don't like the terms, don't use the service. This isn't complicated.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Michael, Dec 26th, 2012 @ 6:04am

    Lawsuit

    I'm trying to build up a class action lawsuit against TechDirt for libel against lawyers that file class action lawsuits for calling their actions a 'shakedown'.

    My only problem so far is that the greedy bastards that make up the class do not seem to want me to be taking 70% of any winnings.

    It's like they just don't understand that I am trying to help them.

     

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  2.  
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    The dude, Dec 26th, 2012 @ 6:04am

    Solution

    An alternative solution would be to read the damn TOS before using a service.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Dec 26th, 2012 @ 6:13am

    Re: Solution

    After then reading the TOS if you don't agree with the terms then STOP USING THE SERVICE! It is not a necessity.

     

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  4.  
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    Jon B. (profile), Dec 26th, 2012 @ 6:23am

    I don't use instagram or anything so I wouldn't know...

    Did they previously NOT claim "ownership" (non-exclusive unconditional license, I assume) on everything uploaded, and now they're claiming "ownership" of everything retroactively before the time it was originally uploaded? If that's the case, then I can see why people are upset, but otherwise, I guess I don't get it

     

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  5.  
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    Michael, Dec 26th, 2012 @ 6:25am

    Re: Re: Solution

    1) Read the TOS before using the service
    2) Hire an attorney to interpret the TOS
    3) If you don't agree with the TOS then do not use the service
    4) If you agree with the TOS, use the service, but retain the attorney indefinitely to re-interpret the TOS when they change again

    Hey, I think I can get a business process patent on that, it does have to do with something on the internet

     

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  6.  
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    Michael, Dec 26th, 2012 @ 6:28am

    Re:

     

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  7.  
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    Josh, Dec 26th, 2012 @ 6:28am

    I'm an artist, and while i don't agree with copyright as a whole, I do object to people using my work without at least asking permission.

    Instagram's choice do change their TOS to "We'll sell your work if we want to" just made me delete my account. That's how a service works, if you don't like it you move on.

    Not suing anyone, I'm not out any money that I expected... just a free service... Done.

     

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  8.  
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    Anonymous Coward, Dec 26th, 2012 @ 6:34am

    Re:

    Note that deleting your account does not necessarily make your works from the account unavailable to the company. IOf they claim the rights retrospectively over works in your account, they will still be able to use them.

     

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  9.  
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    Anonymous Coward, Dec 26th, 2012 @ 6:53am

    Re:

    Okay, but you are aware that is NOT at all what the TOS change said, right?

    I'd like to quote a piece from an article over on The Verge for you. And for any others who are still riled up about Instagram's TOS change.

    "This certainly sounds like a win for consumers, but it's actually a loss: the newly-reinstated terms of service clause is objectively worse for users than the new one, and it's worded far more vaguely - the language feels familiar and comforting, but you're giving up more rights to your photos. Instead of agreeing that Instagram may only "display" photos "in connection with" advertising, users will now continue to agree that Instagram may place advertising promotions "on, about, or in conjunction with" their photos."

    Basically, the old TOS was vague and difficult to understand. So what they did was update it to be clearer and removed parts that were no longer relevant to Instagram, but under the old and updated TOS they were vary limited in what they could do with your photographs. But after the brouhaha they changed it again to appease the teeming masses (and shut up the media outlets who seized on an opportunity to vilify Instagram and ran with an inaccurate story, because "THOSE ARE MY PHOTOS!"), but this time the change went back to being vague (while seemingly removing the bit that had people in an uproar), except now they can pretty much do as they please with your photos.

    This pretty much screwed us, consumers of anything/everything, over for the rest of our lives. Companies are just going to go with vague and overly broad TOS agreements that'll cover anything and everything, and we'll blindly agree to them (as long as they avoid anything specific and clearly readable for us to grab onto and bitch about).

     

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  10. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Dec 26th, 2012 @ 6:59am

    Mike always pro-corporation & pro-contract law.

    Back from holiday with a short but revealingly typical piece, Mike here clearly lays out some of his Planks, his actual consistent positions. I'll just number as occurs here.

    Plank #1, pro-corporation; he's against mere users (or even gov't) having any control over corporations. Only capitalists should have such control.

    Plank #2, pro-contract law, which is a lawyer trick of getting people to give up their rights, here over images, by means of "contract" in TOS.

    Plank #3 is a bit subtle: it's to say don't worry about current monopoly because you'll always have an alternative. -- That's simply not true: the world is being divvied up by mega-corporations, consolidating their power.

    Plank #4 is similarly his frequent "no evidence of real harm", so no need for preventative measures.

    But actually users ("natural" persons in corporate-speak) have a right to push back against corporations: it's a business and must first please the people who authorize it to exist, including abide by common law and not steal their rights. So there's plenty of scope for the arguments that Mike pooh-poohs as strained.

    Any hassle of and pull-back by a corporation is ALWAYS to the good. But I suspect here it'll just consolidate an already unreasonable "Terms Of Service", and further solidify the notion that those are ALL the terms that exist.

     

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  11.  
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    Anonymous Coward, Dec 26th, 2012 @ 7:18am

    Re: Mike always pro-corporation & pro-contract law.

    No, that makes sense. But a class-action lawsuit isn't necessarily the best way to go about it. Yes, you have some salient points, but the fact of the matter is, the only people who win this for certain are the attorneys involved. Anyone else who wins is mere happenstance.

     

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  12.  
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    Zakida Paul (profile), Dec 26th, 2012 @ 7:20am

    Re: Solution

    Have you ever read a Terms of Service agreement? The damn things are usually so bloody complicated that you need a law degree to understand them. How is a Joe Bloggs Internet user supposed to understand them?

    The answer is make the ToS shorter and less complicated so that people will read them AND understand what they are agreeing to by using the service.

     

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  13.  
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    josh, Dec 26th, 2012 @ 7:23am

    couldnt agree more Zakida

     

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  14.  
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    PopeRatzo (profile), Dec 26th, 2012 @ 7:31am

    oblige

    I am very pleased to not use Instagram.

     

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  15.  
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    Anonymous Coward, Dec 26th, 2012 @ 7:41am

    drop out of instagram, it's that simple.

     

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  16.  
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    Anonymous Coward, Dec 26th, 2012 @ 7:44am

    Re: Solution

    The only "term of service" that you have to keep in mind when using a "free" service is:

    "There is no such thing as a free lunch"


    Companies have to make money somehow. If you're getting stuff "for free", you can be sure that the company that is providing the service is using you for profit somehow. It's inevitable: they need to pay the bandwidth and electricity bills somehow...

     

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  17.  
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    JEDIDIAH, Dec 26th, 2012 @ 9:33am

    Re: Re: Mike always pro-corporation & pro-contract law.

    Ambulance chasers may be an imperfect solution to the problem of how working stiffs get justice from large corporations but they are really the only option. Lawyers are expensive and few people beyond the 1% can afford to hire a lawyer properly.

    All this anti-lawyer rhetoric does is help remove what little recourse we "little people" have.

    Pinpricks won't encourage a company to stop abusing the law or the public. The courts are intended to resolve these disputes. They are relatively civilized.

    The alternatives are duels and feuds.

     

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  18.  
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    Anonymous Coward, Dec 26th, 2012 @ 9:37am

    " : if you don't like the terms, don't use the service. This isn't complicated."

    And if theres demand and a monopoly involved?

    Where free market comes in, is a competing entrepaneur can/may come in, provide a product/service for that demand without the restricting tos, and then we vote with our wallets.

    For the people, competition is a godsend, if your greedy, not so much

    Fundementally, i think tos should be abolished, or severly limited

    Not "what can i add to toss"
    But
    "What have we been authorised to" and assume permision needed by the people before adding anything to a tos
    A single set of rules that lets companies know "only these have been authorised to be in a tos"

    Centralizing it, gets rid of the confusion of hundreds of different tos out there with what ever the company feels like putting on it without i might add, constitutional oversight...........nifty that, companies and government bodies being exempt from that........read illegal

     

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  19.  
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    JEDIDIAH, Dec 26th, 2012 @ 9:38am

    Specious nonsense

    It sounds simple enough but the simple fact of the matter is that most people aren't expert enough to run their own servers. Even if people at large weren't generally intimidated by such an idea, you would likely not want them to just because of the security implications.

    So services like this are an obvious and inevitable thing.

    The idea that "caveat emptor" should be advocated in any consumer area today is rather depressing.

    Paranoia sounds sensible but implementing it is non-trivial. It's not a terribly realistic expectation.

    You can only play the hands you're dealt. It doesn't matter if you are the rube or the geek that has to tolerate a marketplace dominated by them.

     

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  20.  
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    JEDIDIAH, Dec 26th, 2012 @ 9:48am

    Imbalance of power

    The problem here is that you have a severe imbalance in the market in terms of power and resources as well as suitable expertise in all of the various subject areas. This includes contract law as well as the technical detail.

    People are put in the position of needing to be lawyers, hire lawyers, or be at the mercy of corporations.

    In a lot of areas, contracts should be standardized. Just as with a basic property sale transaction, there should be some very well established expectations. Things should be simple because everyone should be bargaining in good faith. Bad contracts and lawsuits are just a sign that someone wants to be abusive.

    Standard contracts should rule the day and anything else should be viewed with suspicion as a prelude to being taken advantage of.

    Simple consumer transactions should be simple.

     

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  21.  
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    velox (profile), Dec 26th, 2012 @ 9:52am

    Re: Re: Solution

    " if you don't agree with the terms then STOP USING THE SERVICE! "
    You can easily switch to Flickr which arguably has better filters and features than Instagram anyway.
    A blogger has put together step by step instructions to migrate your photos from Instagram to Flickr here.

     

    reply to this | link to this | view in thread ]

  22.  
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    Anonymous Coward, Dec 26th, 2012 @ 10:00am

    Re: Imbalance of power

    Well one thing you dont do, is make laws and regulations to stunt this growth, in order to maximize a monopoly, that is what will need addressing, aswell as other things

    Encouragement for new business' and the spreading of the wealth, so no one man, no one organisation can dictate our rights, and our markets, it belongs to everyone one.

    Is that how things are? No, i agree.........but that wont stop me from thinking that way, and helping wherever however i may if and when the chance comes, which is the spirit of free market..........

     

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  23.  
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    Anonymous Coward, Dec 26th, 2012 @ 10:45am

    Re: Re: Re: Mike always pro-corporation & pro-contract law.

    At no point did I say that having attorneys was a bad thing. I said that, in this instance, with the class action suit, the only people winning are the attorneys. Let me expand on that.

    Should Instagram win, then that would mean that companies would be able to do whatever they liked with your content, provided that that was stated in the ToU/ToS. Should the class win, then that would mean that services like Instagram would be less likely to show up in any field.

    A much better choice would be removal of your content from Instagram, with a brief note explaining why you removed your content from the service. Getting attorneys involved in this case is, in my opinion, a waste of resources on both sides, some of which would be directed right into the respective legal team's pockets.

    Does that make more sense now?

     

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  24.  
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    btr1701 (profile), Dec 26th, 2012 @ 11:17am

    Re: Re: Solution

    > Have you ever read a Terms of Service
    > agreement? The damn things are usually
    > so bloody complicated that you need a
    > law degree to understand them.

    I have a law degree and I rarely understand them.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Dec 26th, 2012 @ 2:47pm

    If the terms aren't illegal, they should be.

    Really, the unspeakably bad part of the terms isn't even about the pictures themselves. It's about you giving up your legal rights.

    The terms here actually state that Instagram is not liable in any way for anything, if they ARE liable the liability cannot exceed $100, and that class action suits are barred, and that you agree that any damages are not irreparable and you are therefore barred from getting any injunctions against them, and that the statute of limitations on your claims is shortened. Excuse me, but such terms SHOULD be illegal, if they are not already. An entity should not be able to preemptively deny all legal claims against it (or restrict them to this degree).

    And, "We reserve the right to change these Terms of Use at any time" should automatically void the entire terms. That's no longer a contract.

    Not allowing companies to make terms such as these will NOT significantly impact the availability of Internet services. If Instagram is told that it cannot change its terms to prevent people from suing, that will not cause Instagram to go under. If the business model ACTUALLY depends on these terms... run as fast as you can.

    On a side note, the lawyers who write these terms of service are often total morons who cannot anticipate how their seemingly pro-them wording could actually cause them to go bankrupt. They put in terms like, this agreement constitutes the entirety of the agreements between us and supersedes all previous agreements. That company that owed you $50 million? You just gave them a way to nullify the contract that obligated them to pay you. All they have to do is have an authorized agent create an account. If it's any consolation, you can now use that agent's likeness in ads. Hope that was worth never getting paid again.

     

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  26.  
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    Anonymous Coward, Dec 26th, 2012 @ 2:58pm

    Trespassing?

    "That's like saying that it's illegal for you to enter my house without signing a contract, but the second you ask for the contract, that's considered trespassing. "

    And if that "contract" to enter your house was hidden in a website's terms of service? Perhaps it would not be trespassing to put it in the terms - but it would not be out of line to seek a class action suit seeking an injunction against such terms.

     

    reply to this | link to this | view in thread ]

  27.  
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    Pete Austin, Dec 27th, 2012 @ 12:43am

    "Solution" doesn't scale. Anyone doing a startup to help?

    Re: "if you don't like the terms, don't use the service. This isn't complicated."

    That really doesn't scale. If everyone had to read and understand the terms of every site they used, that would take literally billions of hours and cost tens of bilions of dollars in wasted time. It's just not practical.

    What we need is to crowdsource this research and put the results in a searchable database, with browser plug-ins to warn you if you accidently visit a site with objectionable terms.

    Sounds like a good idea for a startup. Is anyone doing one?

     

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  28.  
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    Tex Arcana (profile), Dec 27th, 2012 @ 8:24pm

    I wouldn't fuck Instagram with OOTB's dick. I don't want either of their diseases.

     

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  29.  
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    Julia, Dec 31st, 2012 @ 6:57am

    Instagram

    I love instagram

     

    reply to this | link to this | view in thread ]


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