Interview: Instagram Superstar Richard Koci Hernandez on Terms of Service Controversy

UPDATE 6:10 a.m. Oct. 21: Instagram has announced that it will not change its policies on advertising in its upcoming Terms of Service update. Company co-founder Kevin Systrom said in a blog post that the policies will remain unchanged from the version that has been in effect since 2010. Read the blog post here.

Original post:

Many photographers yesterday went insta-crazy over Instagram's change in its terms of service. The San Francisco-based photo-sharing app, bought by Facebook this year for a cool billion dollars, sparked a backlash among users when it released new language that seemed to indicate the company owned their content. Here's one of the relevant passages:

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.

CNET and the New York Times' Bits blog, among others, put up posts on the practical implications of that language, helping to galvanize the resulting hue and cry that forced Instagram to issue a blog post backing away from the changes. Written by co-founder Kevin Systrom, the post was titled "Thank you, and we're listening." Systrom said Instagram has no plans to utilize user photos in ads and does not claim ownership rights over them.

Extracts from the post:

Advertising on Instagram

Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear…

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.

Ownership Rights

Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.

Privacy Settings

Nothing has changed about the control you have over who can see your photos. If you set your photos to private, Instagram only shares your photos with the people you’ve approved to follow you.

One of the most prominent Instagram users to publicly rebel yesterday was Richard Koci Hernandez. Hernandez is an Emmy-ward winning multimedia artist who teaches at Cal's graduate journalism school. He's been described as an "Instagram superstar," and his work using the app has been featured on the New York Times' Lens blog. Yesterday, Hernandez posted the following on Webstagram, an Instagram photo-viewing site.

(B)y now you've all read about Instagram's new terms of service ... We're all going to feel different about what this means for us as individual creators and that is expected. I see myself as a 'cautious optimist,' so I have my fingers crossed that they, Instagram, will listen to the voice of the community and reverse the new terms of service, but I'm not holding my breath. I don't feel like debating the terms of service or being too nostalgic about the old days of Instagram, I feel that it's much better just to take our work and more importantly friendship and conversation to another place that respects our rights and ownership as creators. Let's move the party to a new location.

Until then, I'll be posting any new photographs on Flickr user name Koci Hernandez , Starmatic and EyeEm user Koci. I'll keep this account open until January 16 so that I can follow the developments and continue to be optimistic about a possible change.

After Instagram announced that it would amend its TOS language to allay user concerns, KQED's Dan Brekke asked Hernandez how he was feeling about the whole thing, now. Hernandez said he still had a "sour taste" over the incident, and that he would prefer to pay for this type of service from the start rather than be subject to a "bait and switch."

Edited transcript:

DAN BREKKE: First off, you have some concerns about privacy?

RICHARD KOCI HERANDEZ: When Instagram announced the proposed changes in terms of service it was kind of an eye-opener. Funnily enough it was straightforward. Usually you read these terms of service and they are so full of legalese it makes your head spin.

But they were clear in their initial message that by uploading your photos to Instagram, Instagram would have the ability to use your logo, likeness, and images and take those and potentially sell them to a third party who could then use them in an advertisement.

But the scarier part of the language to me was the sentence that said it was possible we wouldn’t even tag those ads as advertisements. For me it was quite scary, not about the monetary issue, but the content of the images. I am very protective of the images I post, be it my daughter or a random person on the street, and I would hate to have those images show up somewhere without my knowledge, possibly in the wrong context.

That really rubbed me the wrong way. Since then Instagram has of course reversed or basically put the brakes on and said, “Stop, stop, wait, that’s not what me meant. Let us be clear about our intentions.”

I, a large part of my social network and the social sphere of the Internet was vehemently against this language. But I also knew there was potential for misunderstanding. This isn’t the first time that social networks have changed terms of service and people started reacting or reading into it something that wasn’t intended. Facebook, who now owns Instagram, has had many of those issues.

DB: You said you were exploring transferring your photos to other services because of this. You also expressed some concern that Instagram can’t be trusted now. Do you still feel that way?

RKH: There is a sense of uneasiness despite what Instagram has said. There is a sense that any company is looking to monetize itself. I am the kind of person who doesn’t mind ads in my community, who is used to seeing and sitting through ads. I’m also not opposed to paying for products and services that I enjoy.

What I don’t like is when you offer me this wonderful thing and you don’t offer me an opportunity to pay for it in a traditional sense. And with all of this flimflam and legalese about what we will do with your content -- it feels like I need to be more protective in the future.

I think what’s happening with Instagram is a good thing, because I think people are reading the fine print. I think we do understand that we are giving away a certain amount of privacy when we upload onto the Internet.

Instagram co-founder Kevin Systrom and I were both at the South by Southwest conference last year, and I looked him in the eye and asked him about trust. And I really do believe that he really does believe in the creators owning their own work, and that he really wants to find a way to advertise and offer the best experience. But there is still a bit of a sour taste in my mouth.

Instagram, which was once a very small, almost underground community, is now part of a very large social network, and things will change. The pressure to make and monetize these communities and apps is huge, but it makes me the user a little more reticent about using them, and stepping more and more away from Instagram and finding another community to share my photos.

There are networks that report that, “Hey, we’re not Instagram. We want to be small. We just want community.” But you never know. I bet if you look far enough back Instagram said this when they were three people in a garage trying to make something happen.

I don’t know that there is any such app or group of people in this day and age and this space that’s going to say, “Here come and play, come and have conversation and we’re going to bite the bullet and take on all the cost.” Because you know there is always a price to pay. Because it costs money to host hundreds and thousands and millions of people’s conversations and photos.

My perspective is, just say, “Hey, I’m going to charge you for this experience.” I think we may see a new era of transparency as fallout from this. Which is if you see the service, people will be willing to pay for it to be ad-free, and they will be willing to pay for a certain guaranteed level of privacy for their content.

Everybody hates the bait and switch, and sometimes you see it in an app. They say it’s free and you download it and use it and find out that to use all the services you have to purchase the service of $3.99. Maybe this lack of clarity on Instagram’s part in terms of what they were trying to do with their terms of service might turn the tide in social networks, and especially in social photography services, and basically have the user understand, “Hey, this costs money. Pay for it. Pay a small fee.”