Published by LawTechie - February 15, 2013 - LawTechie

…And it’s a silly one. Back in December I noted, and again in January, all of the odd changes that Instagram was making to it terms of use and privacy policy (specifically its requirement of waiving users’ right of publicity). Well, here is the first class action lawsuit according to Reuters:

The proposed class action lawsuit was filed in San Francisco in December by an Instagram user who leveled breach of contract and other claims against the service.

The civil lawsuit in U.S. District Court, Northern District of California, is Lucy Funes, individually and on behalf of all others similarly situated vs. Instagram Inc., 12-cv-6482.

I say it’s a silly lawsuit because I happen to agree (as a technical matter) with Instagram’s legal defenses. These are:

Funes sued the company on December 21, nearly a month before the changes in the terms of service went into effect on January 19, the court papers said.

She continued to use her account after that day, according to Instagram’s filing.

My emphasis. Because at the end of the day, Instagram is a private company. And as awesomely unbelievable as it is for a company like Instagram to force its users to give up their right of publicity in exchange for using the service, Instagram can legally do this because no one is forcing users to continue to use the service.

So just to be clear, all of my rants against Instagram’s recent term changes in the past few months arise out of my deep-seated belief that Instagram is making a boneheaded business move — but I don’t think it’s actually illegal. (Except for those provisions that sought to have minors waive their right of publicity in the original draft of the terms, that part was illegal IMO… and I find its arbitration clause questionable as well.)

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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