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There's something I can't quite put my finger on, that makes this response seem a bit forced and insincere. "Legal documents are easy to misinterpret. So I’d l

by shabble 14y ago

There's something I can't quite put my finger on, that makes this response seem a bit forced and insincere. "Legal documents are easy to misinterpret. So I’d like to address specific concerns we’ve heard from everyone" My understanding is that legal documents are written precisely to be as hard to misinterpret as possible. They say exactly what they mean, and (subject to possible judicial interpretation) mean exactly what they say. I'm sure the average layperson might misunderstand or not realise the consequences or scope of a particular term, but as I understand it, the original concerns appear to have been raised by an EFF lawyer[1] who presumably does have a reasonable grasp of the matter. That sets the tone for the piece. "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 selling a package. Which might include some photos and some other advertising or whatever services, juicy user data, etc, but we're definitely not selling the photos. Only the package thing. "Ownership Rights: Instagram users own their content and Instagram does not claim any ownership rights over your photos." My understanding is that this is irrelevant to everything except maybe attribution; they're granting themselves sufficient rights to transfer & sub-licence the works, which is essentially everything necessary to sell/use/licence a copy. In fact, the existence of a perpetual royalty-free transferable/re-licenceable licence will significantly devalue the content, if the actual owner wanted to sell or exclusively licence the content. Maybe I'm reading it wrong. But it definitely feels like the Non-Apology-Apology "We're truly sorry that you feel upset about how we're trying to shaft you good & hard." [1] mentioned in http://news.cnet.com/8301-13578_3-57559710-38/instagram-says-it-now-has-the-right-to-sell-your-photos/ http://news.cnet.com/8301-13578_3-57559710-38/instagram-says... as Kurt Opsahl[2] [2] https://www.eff.org/about/staff/kurt-opsahl https://www.eff.org/about/staff/kurt-opsahl

dustingetz 14y ago
> legal documents are written precisely to be as hard to misinterpret as possible legal documents reuse diction that has been ruled on and has court established precedent, which creates a bias towards diction which ended up in court in the first place. i read that in a HN comment somewhere, sorry, no citation.
- shabble 14y ago
  That's a very interesting "survival of the most litigated" sort of evolution. I wonder how much of a given document is unnecessary evolutionary baggage copy & pasted because it's part of That Standard Clause. I'd love to read more if you happen to recall the comment/story
- DannyBee 14y ago
  Only partially. The real reality is legal documents reuse stuff that the partner liked.
ChuckMcM 14y ago
I don't think you are reading it wrong. There was an interesting controversy at Google about ownership of what you worked on in your own time, and their assertion that the carve out in California law about 'having to do with the business' basically covered everything because they were pretty much into everything. If you read it in a strict legal sense, by signing the employment agreement you agreed to give Google a lifetime perpetual right to anything your worked on at any time during your employment with them. So a cry went up, and the official response was "You know what we meant, we aren't really claiming everything." So I said, "Ok, lets rewrite it then to say that you don't mean everything, you only mean things that are in businesses that Google is actively pursuing, and not things Google isn't pursuing." my intention was to align the legal text with the statement of their intention. Silence. Tried again. Silence. Eventually presented HR with a 'modified agreement' which had the new language, they refused to sign it. So I asked, which is it? To which they said "We stand by what we said, you are reading too much into this." And my lawyer said, "If I was a lawyer and had this on file and decided I really want to use whatever it was you were working on, this language clearly says you agree to them taking it from you without any compensation." That was when I decided to leave. I get that it is "simpler" and reduces the companies risk to have that language in there, after all it would be hugely painful to have to compensate someone more than they already did to use something that person wrote, and it keeps folks from creating a business "on the side" and then selling it back later, but there is what they say, and what they do. And what they will do. My lawyer once said, "If they say it doesn't mean that, then have them update it, if they won't then they do mean that, even if they don't want to say it."
- marshray 14y ago
  I disagree with your lawyer. A more likely explanation is that Legal didn't want to modify their very-expensively produced and widely-reviewed employment contract for some mere employee. And HR had you figured out as a troublemaker. :-)
  - ChuckMcM 14y ago
    You are probably correct. Although to my credit I made sure the language I offered had been previously litigated. One argument offered was that it was "too much trouble" to have a special employment agreement for me and a different one for everyone else. They really meant "too much more trouble" since there were at least 3 revisions of the agreement between the time I started and the time I left. Interesting to read the revisions though and compare them to lawsuits that had transpired. (kind of a sick hobby of mine)
larrys 14y ago
"My understanding is that legal documents are written precisely to be as hard to misinterpret as possible." Actually it depends on the circumstances. Sometimes you want to be precise and sometimes you want to be ambiguous depending on what you are trying to achieve. Semi legal example: Let's say you are offering people email accounts with a web hosting service. You can be precise and say "you can have up to a million email accounts" or you can be less precise and say (believe it or not) "unlimited". If you say the latter you can then define imprecisely what you mean by "unlimited". If you specify a number you will box yourselves in. Same with customer support or a host of other things. Precision sometimes works against you. (Corrected I said the opposite before edit.) Another example. Let's say you have a display of free utensils (plastic like at a fast food restaurant). You can say "take no more than 10 ketchup packs" and you will probably end up getting more waste then if you say nothing. In that case, precision works against you.
- pseut 14y ago
  "Take no more than 10 ketchup packs" would be a very unusual legal document. I'm not sure that's the most informative analogy.
mmcnickle 14y ago
It's exactly how I read it too. "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. [But these changes means we could if we wanted]" "Ownership Rights: Instagram users own their content and Instagram does not claim any ownership rights over your photos. [Not that it matters]" It's all misdirection.
smackfu 14y ago
>My understanding is that legal documents are written precisely to be as hard to misinterpret as possible. In this case, the issue is that legal documents are written to be as cover-your-ass as possible. Instagram needs a license for your content to show it on their site. Then a lawyer says "what if Facebook sells Instagram to someone else?". So they add a bit that makes it a transferable license. That was easy! But then someone who is not trying to cover Instagram's ass reads it and says "that means they can sell the rights to my photo." And that's true. It wasn't the intent of the lawyers but the lawyers really had no intent regarding protecting the user's rights. They're just watching out for Instagram.
- mark-r 14y ago
  It is the responsibility of someone in the company (not necessarily a lawyer) to think about how those legalistic terms would look before they were unleashed on the public. The company is now big enough to know better. The changes to the TOS that are promised in the blog post should have been made up front, not in response to a PR disaster.

by shabble 14y ago

dustingetz 14y ago

> legal documents are written precisely to be as hard to misinterpret as possible legal documents reuse diction that has been ruled on and has court established precedent, which creates a bias towards diction which ended up in court in the first place. i read that in a HN comment somewhere, sorry, no citation.

shabble 14y ago
That's a very interesting "survival of the most litigated" sort of evolution. I wonder how much of a given document is unnecessary evolutionary baggage copy & pasted because it's part of That Standard Clause. I'd love to read more if you happen to recall the comment/story
DannyBee 14y ago
Only partially. The real reality is legal documents reuse stuff that the partner liked.

ChuckMcM 14y ago

I don't think you are reading it wrong. There was an interesting controversy at Google about ownership of what you worked on in your own time, and their assertion that the carve out in California law about 'having to do with the business' basically covered everything because they were pretty much into everything. If you read it in a strict legal sense, by signing the employment agreement you agreed to give Google a lifetime perpetual right to anything your worked on at any time during your employment with them. So a cry went up, and the official response was "You know what we meant, we aren't really claiming everything." So I said, "Ok, lets rewrite it then to say that you don't mean everything, you only mean things that are in businesses that Google is actively pursuing, and not things Google isn't pursuing." my intention was to align the legal text with the statement of their intention. Silence. Tried again. Silence. Eventually presented HR with a 'modified agreement' which had the new language, they refused to sign it. So I asked, which is it? To which they said "We stand by what we said, you are reading too much into this." And my lawyer said, "If I was a lawyer and had this on file and decided I really want to use whatever it was you were working on, this language clearly says you agree to them taking it from you without any compensation." That was when I decided to leave. I get that it is "simpler" and reduces the companies risk to have that language in there, after all it would be hugely painful to have to compensate someone more than they already did to use something that person wrote, and it keeps folks from creating a business "on the side" and then selling it back later, but there is what they say, and what they do. And what they will do. My lawyer once said, "If they say it doesn't mean that, then have them update it, if they won't then they do mean that, even if they don't want to say it."

marshray 14y ago
I disagree with your lawyer. A more likely explanation is that Legal didn't want to modify their very-expensively produced and widely-reviewed employment contract for some mere employee. And HR had you figured out as a troublemaker. :-)
- ChuckMcM 14y ago
  You are probably correct. Although to my credit I made sure the language I offered had been previously litigated. One argument offered was that it was "too much trouble" to have a special employment agreement for me and a different one for everyone else. They really meant "too much more trouble" since there were at least 3 revisions of the agreement between the time I started and the time I left. Interesting to read the revisions though and compare them to lawsuits that had transpired. (kind of a sick hobby of mine)

larrys 14y ago

"My understanding is that legal documents are written precisely to be as hard to misinterpret as possible." Actually it depends on the circumstances. Sometimes you want to be precise and sometimes you want to be ambiguous depending on what you are trying to achieve. Semi legal example: Let's say you are offering people email accounts with a web hosting service. You can be precise and say "you can have up to a million email accounts" or you can be less precise and say (believe it or not) "unlimited". If you say the latter you can then define imprecisely what you mean by "unlimited". If you specify a number you will box yourselves in. Same with customer support or a host of other things. Precision sometimes works against you. (Corrected I said the opposite before edit.) Another example. Let's say you have a display of free utensils (plastic like at a fast food restaurant). You can say "take no more than 10 ketchup packs" and you will probably end up getting more waste then if you say nothing. In that case, precision works against you.

pseut 14y ago
"Take no more than 10 ketchup packs" would be a very unusual legal document. I'm not sure that's the most informative analogy.

mmcnickle 14y ago

It's exactly how I read it too. "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. [But these changes means we could if we wanted]" "Ownership Rights: Instagram users own their content and Instagram does not claim any ownership rights over your photos. [Not that it matters]" It's all misdirection.

smackfu 14y ago

>My understanding is that legal documents are written precisely to be as hard to misinterpret as possible. In this case, the issue is that legal documents are written to be as cover-your-ass as possible. Instagram needs a license for your content to show it on their site. Then a lawyer says "what if Facebook sells Instagram to someone else?". So they add a bit that makes it a transferable license. That was easy! But then someone who is not trying to cover Instagram's ass reads it and says "that means they can sell the rights to my photo." And that's true. It wasn't the intent of the lawyers but the lawyers really had no intent regarding protecting the user's rights. They're just watching out for Instagram.

mark-r 14y ago
It is the responsibility of someone in the company (not necessarily a lawyer) to think about how those legalistic terms would look before they were unleashed on the public. The company is now big enough to know better. The changes to the TOS that are promised in the blog post should have been made up front, not in response to a PR disaster.