Further thoughts on the rights grab by Adobe

There is quite an uproar in the blogosphere about the recent “accident” with Adobe’s Photoshop Express beta Terms of Use (ToU).

One of my favorite photographers and bloggers, Jim Goldstein, asked four questions on this:

1. What the hell is Adobe thinking?
2. Are corporate lawyers really this out to lunch?
3. Why wasn’t greater thought put into supporting the rights of their users and managing the trust behind the Adobe brand?
4. Why would Adobe bury the meat of the Terms of Use as they’ve done?

Very valid questions indeed. Especially the questions of the “Why?” and “How?” are worth further analysis.

Having worked for large corporations in the past, I know that legal departments do not come up with terms and conditions just “out of the blue”. They are usually reactive, drafting legal clauses from the input provided by (and often in close cooperation with) the product teams. I.e., Adobe’s legal team did probably NOT say, “hey, why don’t we just grab for the rights of the images that people upload to the site? This way we could earn an extra buck or two at a later point in time.” – No. A legal team typically listens to the input by the product team and then comes back with an appropriate legal wording. It might well be that the product team in this case wanted or needed to grab for the rights for business reasons and asked the legal team to hide the fact as good as possible. The legal team replied by burying the terms somewhere in the general T&C. So I strongly believe that the product team thought they could get away with this.

It’s worth noting that at least the Adobe PR folks got their act together. They did an excellent job in telling the world that the legal team did a mistake (it’s always easy to blame the lawyers, as everyone seems to be happy with that). Just read this comment by Adobe’s John Nack responding to this blog post, and the inspiring discussion:

No, it was *not* anyone’s intention to “rip off” customers. The people who wrote the legalese overshot the mark, that’s all. It’s not some nefarious scheme.

In my opinion, this is at best only one half of the story. The other half is with the product manager, who most likely initiated this fiasco and should have stopped it. The fact that the ToU were published like this leaves several serious questions open. Most of them concerning the product team who let this mess happen.

Anyway, in the future, we will need to review the terms and conditions much closer, not just for Adobe’s services.

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