[shabble]

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... as Kurt Opsahl[2]

[2] https://www.eff.org/about/staff/kurt-opsahl

[ChuckMcM]

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]

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]

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)

[gwillen]

That provision of the agreement wasn't the reason I quit, but it was a little rock in my shoe that never went away until I did.

If you add up the total number of people at Google who have complained about that rock, and the number of people who haven't but would if they were prompted, suddenly "too much trouble" looks a little different, IMHO.

[fudged71]

So does google still own all your/employees' off-hours IP?

[gwillen]

That depends on who you ask and how you look at it.

Google has always insisted that it's only IP that's relevant to Google's business. Critics (such as myself) have always retorted that ANYTHING can be construed to be relevant to Google's business.

The only thing that's materially changed in response to complaints, is that there is now a review committee that you can submit projects to, and after some weeks they can grant you permission to keep the IP.

But if Google actually believes that your specific project is related to their business, you're not going to get an approval. For example, all applications for smartphones are explicitly blanket excluded.

[marshray]

A friend recently spoke to his lawyer about an employment agreement, and the advice he got (this is 3rd hand by now mind you) was basically "if the terms are otherwise favorable to you, don't worry about the parts that are clearly unenforceable".

[jacquesm]

Your friend needs a better lawyer.

[ChuckMcM]

I was thinking the same, but really the advice hinges on two things, the first is the term 'unenforceable' and the second is the cost of litigation. In my case I went back and forth with my lawyer on whether or not their wording was enforceable in California and his advice was that given that California is a right to work state, and they explicitly remind you they can fire you for any reason, and disagreeing about ownership isn't protected by the right to work law (like discrimination is), if you're suing them you're not working for them (they will fire you), and if you really think there is a chance that something you might work on in your spare time could be "valuable" than the best thing to do would be to quit. Very unambiguous that.

I found it hard to argue with his logic.

[TillE]

It really depends on the jurisdiction. If very similar clauses have already been tested and thrown out in the appropriate court, then sure, you don't need to worry about them.

If a lawyer is advising you that something is unenforceable, they're probably right.

[mmcnickle]

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]

>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]

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.

[larrys]

"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]

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

[dustingetz]

> 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]

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]

Only partially. The real reality is legal documents reuse stuff that the partner liked.