Adobe Photoshop Express TOS Fiasco

Apparently, Adobe's Terms of Use for its new Photoshop Express service (public Beta; click on image) have caused quite an uproar all over the blogosphere. Initially, it seems, Adobe's lawyers granted their company unusually extensive rights to all user content posted on the service. The backlash was so widespread, that John Nack addressed the issue on his blog twice, first to acknowledge it, and then, to post an update when an amended version of TOS was posted a few days ago.

So do the amended Terms address the issues that so riled the potential users? There is an interesting and very sensible analysis on zanzig.com of what the new Terms mean, and how Adobe might now try to monetize the service, given the new set of rules.

Still, one remaining issue which most blog posts I have read do not address, are the extensive rights granted to the users of the service regarding the content posted by others.

Even with the amended TOS, (version dated April 03, 2008) the very act of making the photos public, apparently grants very extensive rights to other users (they can "view, download, print, distribute, publicly perform and publicly display" your content). Yes, the granted rights are supposed to be non-commercial, but this is a very fuzzy term, especially since under the new, amended terms, companies (and not just individuals) are specifically allowed to use the content for "internal," business-related purposes (the content is therefore clearly intended to be used by companies, and not just by individuals for personal use). Further, such semi-commercial use clearly protects Adobe's rights, but not the author's rights (TOS says: "When you embed Shared Content on a web page, you agree that you will include a prominent link back to the Service from that page"; notice no requirement of crediting the author).

When, a while ago, a company wanted to grab my sunflower image from flickr, and use it on their website homepage, they e-mailed me and asked. I said, yes - and was pleasantly flattered - but it was my decision, and it should be. 

Hypothetically, under Adobe's new Terms, the same company could have taken my image (legally), without even asking, post it on their website or intranet, or print it on 3000 thank-you-note postcards sent to their affiliates; or they could use it in 1500 copies of their newsletter, without as much as attribution or credit (since the website or post-cards are not sold; by themselves they generate no direct revenue, are not used to advertise a service or a product, and they are not used to generate new business, technically, and legally, it could be argued that all these uses would qualify as non-commercial, "internal" uses).

I dunno :( , but I sort of don't really like the idea, and I think it will prevent many other people from posting their photos on Adobe's PS Express. Companies know that even when the law is against them, the author has very little recourse (as so very articulately explained by James Duncan Davidson in his blog post); this TOS further encourages such abuses, and takes away even the already few legal rights the authors have.

Why can't Adobe just let the users decide what rights they want to grant to others is a mystery to me. Users could  either post their content with a traditional copyright notice (which practically grants other users no rights, other than just looking and admiring, plus statutory fair-use rights), or with any CC license flavor they choose. Flickr has done it for years (although as James Duncan Davidson recently pointed out, flickr has some issues too).

That unnecessary, bad PR fiasco, and TOS that continue to be far from acceptable is really unfortunate: it is likely to distract from what otherwise is a really interesting, and innovative software engineering solution (with a great UI; see Macworld first-look review).

Express will no doubt put a lot of pressure on existing photo hosting services (see my review), including such high-profile competitors as Google (with Picassa) and Apple, with its paid, and problem-prone dotmac service (see my review). But until Adobe amends their TOS once again, my pics stay where they are. And that's too bad, since otherwise, I like PS-E.