Paper Title How Do They Get Away with It?

-- By AlexandraWeissfisch - 07 Dec 2021

Section I: Online Platforms' Catch-All Tactics

There has been much talk and controversy around the idea of online ‘terms of service’ agreements. Many people are very uncomfortable with the fact that simply by clicking on a small box online we are agreeing to the provider’s terms of services. Online services do everything at their disposal to make this act seem inconsequential to its users. From the small size of the font indicating that you are agreeing to the terms of service, to the placement of the box on the page, to the fact that you often have to click on another link to even read the terms, and you can agree to the terms of services without even having clicked on that link. There is also simply no alternative but to check the box when signing up for the majority of online services. If you don’t check the box, you are denied access to the service. Let’s say you do actually realize what you are being prompted to do and take the time to navigate to the terms of services, and then also take the time to read the agreement. If you are worried in any way by any of the clauses or are confused about how they would apply to you, that is going to have to be a pretty high level of worry to make you pause and refuse to sign up for that service. Needless to say, it doesn’t take a worldwide survey to know that the majority of online users are not reading the fine print, and even those that do, will likely see no other option than to click on the box.

On top of this uncertainty around whether users are to actually be bound by these terms of services is the uncertainty embedded in the language of Instagram’s own terms of services. Instagram’s terms of services address the question of whether the content you post on the platform is sub-licensable, but it does so in a vague way that gives them much leeway and flexibility. Where most other social media platforms have explicitly provided an answer on the question of the scope of any sub-licenses that the platform is granted when you click on that box, Instagram has shied away from doing so.

Section II: Sub-Licences and Online Platforms

To take a step back, it is important to note that many online platforms have terms of service that explicitly state that the content that you post on the platform is sub-licensable. These platform’s terms of service licenses are non-exclusive licenses, meaning that they grant the licensee (the party who receives the license) rights in the intellectual property, and grants the licensor (the party who grants the license) rights to grant licenses to other parties (a sublease). This is in contrast to an exclusive license, which is a license where the licensee is the only party that has permission to exploit the relevant intellectual property; no other party, including the licensor, can use the intellectual property. The reason that platform terms of service licenses are non-exclusive licenses under American law is that exclusive licenses require a signed writing, which a click of a box likely doesn’t satisfy. An important question, in the context of platform term of service licenses, is what the scope of the sub-licensable grant, and whether these authorizations are limited to platform sharing, or whether they authorize off-platform sharing.

Sub-licenses in the social media context becomes even more complicated, as many social media platforms allow their users to interact with each other and share content that other users have uploaded. While the TOSs of most of these platforms are clear and specify the manners by which others may manipulate any uploaded content (e.g., comment on, reproduce, distribute, create derivative works), they can be less clear on whether the authorizations are limited to on-platform activity, vs. off platform activity. For example, Twitter’s TOS states that “by submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods now known or later developed,” explicitly stating that the sublicense covers off-platform sharing in addition to platform sharing. YouTube? ’s TOS states that “this license does not grant any rights or permissions for a user to make use of your Content independent of the Service,” explicitly stating that the sublicense only covers on platform sharing. However, Instagram’s TOS leaves us with no answer as to the scope of the sublicense that you are granting them, with no mention as to whether it refers to off-platform, or just on platform sharing.

How is it possible that Instagram is able to get away with such ambiguity? Is it intentionally unambiguous to allow for broader interpretation to authorize off-platform sharing? In the face of much consumer distaste with the take it or leave it approach that social media platforms force onto its consumers, you would think Instagram would want to at least provide explicit TOS.

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