Instagram Flap Shows Confusion Over Control of Content

The ruckus (now lawsuit) over whether Instagram would use your pictures to make money has drawn new attention to an unresolved battle of the Web era: Who owns your stuff online?

In a blog post on the company site last week, Instagram's co-founder, Kevin Systrom, sought to reassure users that their “content,” in Web jargon, belongs to them. He pointed to the company's Terms of Use, which spelled 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.”

He added in plainer terms, “We don't own your photos - you do.” It was a smart tactical move. We tend to be proprietary over the picture s we make and share with friends.

It was also, as the law professor Eric Goldman put it, part of a raft of company policies that can be “misleading shorthand.” We might own our data, but we may not always control what happens to it. There are too many complicated, sometimes impenetrable clauses in company Terms of Service. Take for instance Facebook, Instagram's parent company. Its users are also told they own their data, but their preferences for certain products â€" their “likes” â€" can be used in the service of a type of advertising known as Sponsored Stories.

“Unfortunately,” Mr. Goldman argued, “the lay audience usually misreads these complicated and nuanced contract provisions, resulting in histrionics (“they ‘own' me!”) or platitudes (“it says right there in the TOS that users own their own data”), neither of which is quite right.”

Instagram is a free service, and the business model of free Web services relies precisely on taking advantage of user data, including the “content” users produce. Facebook makes money by letting advertisers direct marketing messages at prospective customers, based on what they reveal about themselves and who their friends are. And even as Facebook too says it doesn't “own” any of it, personal data is the company's most valuable asset. Advertising is its principal moneymaker.

Instagram too will walk down that road. It too will get into the advertising business at some point. As Mr. Systrom made clear to his users, “We are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work.”

The blog post came in response to an unusual uproar from among users over Mr. Systrom's bid to share Instagram user data with its parent company, Facebook; the mutiny compelled Instagram to backtrack on the proposed change. A class-action lawsuit was filed in federal court in San F rancisco, even before the revised terms of service were to go into effect.

Instagram is not the first company to have to contend with the dilemma over user data. Twitter sought this year to convince a federal judge in New York that its users have a reasonable expectation of privacy over their own postings. The judge disagreed; posting a 140-character missive on Twitter, he ruled, is akin to shouting out of the window.

Likewise, federal prosecutors have argued in court that cellphone owners do not have a reasonable expectation of privacy in the location data captured by their cellphones because, they contend, the data belongs not to the cellphone owner, but to the telecommunications carriers that provide the service.