I disagree with his analysis.[^fn1] Nilay focuses on this clause:
> 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.
and says that the “in connection with paid or sponsored content or promotions” language is limiting on what Instragram can do with your photos. My issue is that there is no definition of what “paid content,” “sponsored content,” or “promotions” really means. It is possible that Instagram could hide behind this language to make wider use of uploaded photos than Nilay suggests. Nilay further argues that “Instagram can’t sell your photos to anyone.” This ignores, however, the following clause:
> [Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service
In other words, Instagram might not be able to “sell your photos” but the license could be read as allowing it to freely license them. I believe that a license to an advertiser to use a photo is what most people think of when they say “sell photos.” I think it’s misleading for Nilay to say “Instagram can’t sell your photos to anyone, for example” without explaining the licensing aspect.[^fn2]
The disagreement that Nilay and I have about the new Terms of Service should make it obvious that the new terms and the rights that they give Instagram are not particularly clear. Though some people might be viewing the terms through too harsh a lens, I think that Nilay’s take is much too optimistic. It will be interesting to see how this plays out.
[^fn1]: Two things: (1) this post is not a full analysis of Instagram’s proposed new Terms of Service and should not be interpreted as such, and (2) this post touches on copyright law but is not legal advice. If you have questions about copyright law, especially in relation to your photos, I suggest you contact your attorney.
[^fn2]: As Nilay points out, a number of photosharing sites, including Facebook, have similar language. The main lesson from this whole ordeal is probably that people who post photos on various services should review the terms of service of all of those services.