Editorials – Page 2 – Appotography

Hipstamatic: Deleting Your Photos from Family Albums?

I have already said something about the way the developers of Hipstamatic handled their new Terms Of Services — and in the end their users — in a previous post, “Hipstamatic: Why Companies Can’t Be Your Friend”. For those that do not have time to read, the answer to the question is that these people are there just for the money. There is nothing wrong with it, but their promise of being your friends (almost hippie friends, judging from their Facebook posts) is contradicted by the way they write their Terms of Service. In brief, those using Hipstamatic public services accept to give away ownership of their photos to Hipstamatic, which can also resell them to third parties if they want to. And no, this is not a necessity: Flickr and Google+ both have licenses that do not allow them to resell your stuff to others. The reason why a lot of young companies opt for Terms of Service that are so empowering for them is that they give them less reason to fear legal issues with their user base, and they give them property over enormous amounts of assets: owning millions of photos can boost the value of your company enormously, especially if image search engines will get smarter as many expect over the next years.

The way the new “Family” Album feature in Hipstamatic was released, in my eyes, just confirms Hipstamatic’s way of doing business. Since the release of the feature, a lot of users have asked us how to delete photos in public albums. These users even tried asking Hipstamatic’s customer service, and the poor guy answering them said he can just collect the feedback and give no answers for the time being. Currently, there is no delete feature in Hipstamatic to allow deletion of photos in public albums (edit: the option was finally added, but the rest of this article still applies 100%). You can delete a photo locally, but you cannot remove it from the album “on the air”. And even if Hipstamatic decided to give you this feature, remember that your photos will forever remain in the public domain. So, if somebody downloaded a copy of it, or grabbed a screenshot of it, they are free to use it however they want.

When you share a photo using Hipstmatic’s Family Albums, you have a choice between two different Creative Commons licenses for your photo. Well, a few points must be made clear for you:

Once you have released something with a Creative Commons license, the license cannot be revoked, ever. Flickr allows you to change the license on your photos after you have released them as Creative Commons (but Flickr offers you also licenses where you always remain the only owner of your photos), but theoretically that is not legally acceptable. From the official website of the Creative Commons organization (you can find the FAQ here):

What if I change my mind?

Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work. So you need to think carefully when choosing a Creative Commons license to make sure that you are happy for people to be using your work consistent with the terms of the license, even if you later stop distributing your work.
CC licenses come in different flavors. Hipstamatic, being your best hipster buddies, also select by default for you the most permissive Creative Commons license of the two they make available, the Standard License. This allows anybody to use your photos for whatever they want, including derivative works and commercial use as long as they give credits to the original author. According to the Creative Commons website, “This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.”. The other license in Hipstamatic, the one NOT selected by default, is Attribution-NonCommercial-NoDerivs License, the most restrictive CC license, only “allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially”. So, if you want to make sure people do not make money off your photos or use them for their beautiful derivative works, you must manually select this second option in Hipstamatic when uploading your photo. But remember: in both cases the license cannot be legally revoked, ever.
Regardless of the CC license you select, the company behind Hipstamatic always keeps the rights on your photos, as outlined in their Terms of Service. Which basically gives Hipstamatic the permission to exploit your photos in any way or format, forever, and resell them to third parties.

In the end, remember that even if Hipstamatic implements the delete functionality for their “Family” Albums (kinda misleading name, as one of our readers pointed out) your photos will still keep the Creative Commons license you have selected.

New Hipstmatic’s Terms of Service: Why Companies Can’t Be Your Friend

A few days ago, Synthetic, developers of Hipstamatic, released a new version of their popular and award winning application. We love Hipstamatic for the quality of the filters provided, it truly is a good app.

The last release of Hipstamatic came together with a new Terms of Service agreement, and some of the users, instead of skipping through it and pressing the “I Agree” button, decided to read it and did not like some of the points contained in the document. To be brief, by accepting the agreement you will give Hipstamatic full rights on the photos you upload to their servers (not those you keep on your iPhone). By full rights, I mean they can – just to make an example – use your hi-res photos and sell them, and you will get nothing.

Here is the interesting bit in the new TOS:

“You grant to Hipstamatic the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.”

And again:

“You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Hipstamatic.com, you hereby grant Hipstamatic.com a worldwide, non-exclusive, royalty-free, sublicenseable, and transferable right and license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Website and Hipstamatic.com’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media now known or hereafter developed.”

Many users were irritated by these bits, also because in order to download the new free pack of filters in Hipstamatic you are forced to agree to the above terms – even though downloading an add-on and giving full rights on your photos to a third party are thankfully usually two very different things.

Synthetic, a bit like it happened with Instagram’s guys, were very fast to answer their users on Facebook, and they did it by writing a sweet sounding – more hippie than hipster – declaration of love and purity of sentiments that seems to have moved the hearts of some, and enraged others.

“Let me assure you that we have no intention of doing anything evil with your prints ever. We’re really just a group of guys, and good ones at that — there’s six of us now, one recently added. We are not some big faceless megacorp looking to leech all the money we can out of your art. We made Hipstamatic because we love photographs, and our community is our greatest treasure because of the awesome things they’ve done with our app. I promise that we are not out to screw you. We love you guys. :(“

The rest of their post, which you can read on Facebook (thanks to our visitor JonnyGerman for reporting the post in one of his comments), basically states that the “necessary” nasty bits apply only to people uploading photos to their servers. Also, the developers added that they are hearing the feedback of their users and they have now hired “expensive lawyers” to take care of things.

The first criticism against this kind of answer is, hopefully, obvious. All the babbling about “we are good guys”, “we love you”, “we are not a faceless megacorp” is completely out of place and pathetic when you represent a company offering a service to your users, dealing with critical private data and precious (for many, not for everybody, according to the comments on Facebook) photos of these individuals. Between friends, you do not need a Terms of Service Agreement. Between friends, you do not need a Terms of Service where you grant yourself ownership on the work of your other friend. Hipstamatic might very well be run by a team of “six artists” (once again, from the aforementioned Facebook post), but these artists are also skilled businessmen: they are currently running an app that has been top ranking in the App Store for a long time, and this means with no doubt millions of dollars of almost net profits, once you take away Apple’s 30% on their sales. Not a megacorporate, but a very healthy, profitable, and attractive company. On the outside, in their Facebook posts, Hipstamatic’s developers might say they are your friends, but this did not prevent them from slapping into their Terms of Service a clause that is simply unacceptable for anybody valuing their work even a tiny bit. Show your kind face to your users, and put the nasty clauses into the Terms of Service is a way of conducting business that has nothing to do with being artists or being good guys: in today’s market, it simply means you are an astute and world-savvy businessman.

And let’s even say you buy their excuses, because you want to, you think they are nice and friendly and their app is cool. You trust these “six artists” and you believe that they just hacked together a Terms of Service in their free time and threw it at you without thinking twice. This is even more unacceptable, as I wrote in my post about Instagram. A company like Hipstamatic might already be worth millions of dollars to a potential buyer; acquiring rights on potentially million of photos of users that maybe just agreed to the TOS without even reading it (don’t we do that all the time? and it’s all our fault) will make the value of their assets soar. So, the “six artists” might sell their company in the future. Or maybe the company will go bankrupt – you know, they say another Internet bubble is soon to explode, and we live in uncertain times – and another company will purchase all their assets. At that point, guess what will happen to your photos? They will fall into the hands of this other company, and you will be able to do absolutely nothing about it, because by agreeing to the TOS, you gave Hipstamatic full “transferable right and license to use”.

Please think about this, understand what kind of crazy, offensive uses could be made of your photos if you agree to such a TOS, and I am sure you can’t do anything else but being at least disturbed by it.

In the end, I have no doubt that Hipstamatic will revise their Terms of Service, giving us proof that the nasty clause in their TOS was far from being “necessary” (again, from the Facebook post) – it was just there to cover the six artists’ backs, to the detriment of the thousands (millions?) of artists that are using their application. Am I right? We will see.

As users of these apps we must always be careful and smart, and remember that as nice or as friendly these developers might seem, they are there trying to make money out of you. There is nothing wrong in that, but the relationship between company and client can be a good one if it is based on honesty or at least on a well-balanced TOS, not on half-assed attempts at taking away as many rights as possible from the users.

I hate to quote myself because I do not think I am a good writer, but it is just sad that the ending I wrote to my piece about Instagram applies perfectly here:

“…These users should have read the TOS, so in the end they were technically responsible for their choice of using Instagram and uploading their photos. But as a small professional software developer and website owner, I like to think about my potential users as people I must protect, and I must know that almost nobody, these days, will read the TOS. Maybe photographers are not good businessmen or scrupulous Internet users, but they are often very passionate about their work. It’s their art. And this deserves respect and assumption of responsibility – especially if you are a “starter” planning to make a living out of your users’ art.”

Be proud of what you do, and do not give it away for nothing – unless you want to.

The Problem with Instagram

We liked Instagram enough. It is a no-frills, simple application which is already extremely popular among iPhone photographers. It is obvious that the guys at Instagram, after they raised consistent funds for their project (“We raised a $500,000 seed round from Andreessen-Horowitz and Baseline Ventures”, they write on their website’s FAQ), followed the minimalist approach that has always characterized Mac platforms, and that has now become a distinctive feature of a lot of iPhone and Mac apps, but also of online applications. The developers of the hugely popular Basecamp, a web-based project management tool which brilliantly exemplifies this tendency, even wrote a small book on the topic, “Rework”, which seems to have become a must-read for startups and small entrepreneurs (or “starters” as they are called in the book). While some may hate the book, I think it is a fast read that could be worth your time and money (or if you prefer to go the cheap way, just read the authors’ blog), also to understand how a lot of these young companies try to work and market their products. In brief, the authors of “Rework” propose a way of doing business based on building as-simple-as-possible and easy to use products, and trying to avoid complications along the way.

By all means, Burbn Inc., the development team behind Instagram, seems to have followed this philosophy – at least for the phase 1 of their project. Instagram is lacking a lot of features that one would find in other apps, but they built their app with the features they considered necessary for most of their users (or for the average user), and launched it as fast as possible, after a beta period.

And Instagram is free, for God’s sake, so what have you got to lose, right? This is what a lot of Instagram users must have thought, us included, and you could see the community associated with the product growing exponentially, day by day. Enter Chrysti and Chris Prakoso, Instagram users and the heroes of this post, who noticed something peculiar in the Terms of Service agreement of the application:

“By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. Instagram and/or other Users may copy, print or display publicly available Content outside of the Instagram Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).”

Which basically meant that anybody could grab your photos on Instagram and do with them whatever they wanted, including selling prints or using them to decorate a sleek collection of underwear for dogs. Some other parts of the TOS seemed to mitigate this a tiny bit, but the loophole was there. After I have no idea how many users (some say 1 million users are already using Instagram), Chrysti and Chris were the first ones to actually read the TOS, or at least the first users with the willpower to read and understand the TOS. A small discussion of mostly concerned users and professionals with dozens of their photos already uploaded into Instagram’s servers followed and added interesting nuances to the matter (you can find the discussion created by Chris and Christy here). After a few hours, surprise! – Instagram’s TOS was updated to remove the paragraph above, and everybody was happy.

But I am not. Such a fundamental change in the TOS in a matter of a few hours since a user and some important blogs first reported the issue is at least suspicious. It almost feels like the developers were aware of this loophole in their TOS, but tried to keep things as simple as possible for themselves, for as long as possible. Nothing easier for a “starter” in the online application business than to ignore any possible copyright lawsuits between members of their community in the first weeks (or months, maybe) of activity. Then, in case a smarter user notices and makes his concerns public, you always have plan B ready: a pre-written and more acceptable TOS, and a chance to look like you listen to your customers’ concerns.

Of course, there is also another possible explanation. Instagram developers really did not know what they were doing when they wrote their TOS; maybe they grabbed your average safe TOS and threw it into the application and into their sleek, minimalist website. Possible. But not better. As a user, this could make you doubt Instagram’s dedication and commitment in providing an environment that is respectful of the users and of their media. If the developers did not take the time to review their TOS, is it possible that they are taking other dangerous shortcuts, maybe in their code? And if you were one of the investors that gave them $500,000 to create and manage the application, would you feel comfortable having them running the company? This is exactly the kind of mistake that in these days, where discussions about privacy and ownership of your online “things” make the first page of major newspapers, would call for a resignation from the person directly responsible for it. And a big public apology, maybe here.

1 million users, each sharing at least 10 photos (a very conservative estimate; in most cases, dozens of photos). This means that for nearly two months, millions of photos were in the land of copyright wilderness, ready to be used in ways that I am sure a consistent percentage of Instagram users did not want them to be used.

Yes, you are right. These users should have read the TOS, so in the end they were technically responsible for their choice of using Instagram and uploading their photos. But as a small professional software developer and website owner, I like to think about my potential users as people I must protect, and I must know that almost nobody, these days, will read the TOS. Maybe photographers are not good businessmen or scrupulous Internet users, but they are often very passionate about their work. It’s their art. And this deserves respect and assumption of responsibility – especially if you are a “starter” planning to make a living out of your users’ art.

Edit (11/07/2010): Chris, the Instagram user that reported the issue, was kind enough to point out that user Chrysti was the one that actually led him to read the TOS with greater attention. We updated the article to reflect this and to link to their websites.