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Terms of Service Agreements are not law, and are not legally binding (FALSE)

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Offline kat

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Terms of Service Agreements are not law, and are not legally binding (wrong)

It is utterly astonishing that creatives of all stripes, including those in senior positions of employment who really should know better, still don't know their rights with respect to publishing content on social media. That yes, while the individual owns their work, posting screenshots and other media to Twitter, Instagram et al, is explicit permission for those services to use published material in any way they see fit; it's explicitly written in the Terms of Service agreements for a (this) reason ... exploitation/appropriation (use) without compensation (royalty free).

There have never been any 'ifs' or 'buts' about this.

And yet the argument that "ToS [agreements] are not law" (false) and/or that they "are not legally binding" (false) persists.

So, let's take a look.

Shown below is a quote tweet from a senior story artist at a AAA game studio rebutting a claim that AI training through use of artwork posted to Instagram is essentially unlawful - a 'misappropriation' in Copyright speak - despite the artworks author granting permission for this through the very act of publishing to that service (as the User they're responding to clearly states).

OP: "[sic] I do see the problem. Have you read the Terms of service for Instagram? You are allowing them to re use and do basically anything with that you post. AI, has the permission to scrape Instagram. Your only real solution is to not upload anytime to the internet, once you do you've forfeit control over your work. Your better of at some decentralized network. It's **** but it's part of the game. Many artist have no clue on how the internet works, then cry about it. Creators should read the terms and policies."

Respondent: "[sic] Terms of service are not law, and are not legally binding, nor do they overtake copyright law. Disney, Riot and Blizz post content on Instagram and insta doesn't own Mickey mouse, overwatch or League"

Here's the relevant section of Instagrams Terms of Service (https://help.instagram.com/581066165581870/);

"Permissions you give to us. As part of our agreement, you also give us permissions that we need to provide the Service.

We do not claim ownership of your content, but you grant us a licence to use it.

Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service and you are free to share your content with anyone else, wherever you choose. However, we need certain legal permissions from you (known as a "licence") to provide the Service. When you share, post or upload content that is covered by intellectual property rights (such as photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content (consistent with your privacy and application settings). This licence will end when your content is deleted from our systems. You can delete content individually or all at once by deleting your account. To learn more about how we use information, and how to control or delete your content, review the Data Policy and visit theInstagram Help Centre."

It's quite clear from the terms as written that posters are agreeing to their content being used as described, and that this agreement only lasts so long as the artwork is available on their service. Note too, how the agreement is worded, it does not describe the technical means through which content might be used, in this case Artificial Intelligence Training, but it does accommodate it in terms of what AI might do (the 'act' or 'action' not the 'means'); using an artist's original work as the basis of generating a derivative that might then be published to that authors feed.

There is no equivocation on this, if content creators post their material to a third-party service governed by a ToS that includes a 'permissions' section, a legally binding agreement is being made between said parties, they are explicitly not claiming ownership, and are instead recognising they are being granted the right to use said work as Service Provider see fits (within the realms of 'act' not 'means').

So, while Disney, Riot, Blizzard et al may "own" the content they post to social media and other services, they too are granting those services permission to use their material in the same manner (assuming they don't have separate agreements not offered to the general userbase).

How artists manage to maintain this murky, incorrect, understanding of their rights with respect to Copyright law in this day-and-age is anyone's guess.

For more on Copyright, see also;

- I got a DMCA 'take-down' Notice, what do I do?
- What is/does getting "FOXed" mean?
- Fan Art and Copyright Infringement
- The Scourge of Plagiarism to Authors, Content Creators, and Makers
- "Net Neutrality" has been hoodwinked, yet again!
- Hey ho, to sea we go, a Pirates life for meeeee!