The public pressure put onto Adobe concerning the Terms of Use for their Photoshop Express beta service has worked. Adobe’s John Nack has posted an update, outlining the changes to the terms.
The terms are still spread across two files, so please make sure to read both:
Most of the hot issues have been addressed by the legal team:
- The licence granted to Adobe has now been put into the specific Photoshop Express Terms of Use, i.e. the dirty details are not hidden in the general terms any longer. Good.
- The licence granted to Adobe now clearly outlines what limited usage rights Adobe gets, and why. As I see it, the right to
make money fromsell and sub-licence your content has apparently been removed. Good. [Update: Section 10 of the Adobe.com terms of use grants Adobe the right to display ads along the content. Why the Adobe.com terms are labeled "Adobe Photoshop Express beta" is beyond me.] - The licence granted to Adobe now can be terminated at any point in time by simply not sharing the content any longer, or by removing the respective content item. Good.
But it’s not all glorious. Photographer Paul Butzi points out, that the rights granted to other users of the service are pretty far reaching:
[...] the license you grant to others to use your image might give some folks pause. Look carefully at Section 6(b) and section 7. Do you really want to grant other users the right to print your images? Do you really want to grant other users the right to use your images on the web, free? I don’t, so I won’t be using the service.
I agree with Paul. Section 7 explicitly prohibits any commercial use, but the wording is indeed another rights grab (of which Adobe is indirectly benefiting). And by making your content available for “web use”, even when only for “non commercial” stuff, you will have a hard time arguing with web publishers whether a certain site is of commercial nature or not. Been there, done that. It’s fun – not! [Update: Please make sure to also read George Jura's excellent article on this issue.]
Anyway, another question is still open: Is Adobe going to make substantial money from the free ad-based service alone?
Possible answers:
a) No, but… Just like flickr, the service will be split into two offerings, i.e. a limited free version, and a full-blown paid version. This makes perfect sense: as network connections get faster, people will migrate from boxed (stand-alone) software to online software, using a pay-as-you-go scheme. I believe that such a subscription based service is the long-term plan by Adobe. [Update: the aforementioned clause 10 of the Adobe.com ToU has been modified to reflect not just advertising, but specifically mentions "other revenue generating models by Adobe on or in conjunction with the Services" now. A clear hint that they are aiming at, er, other revenue generating models, most likely subscriptions or premium transactions.]
b) No, but… Adobe hope to draw the majority of visitors to the sections of the service where Adobe can better monetize the service, i.e. beyond display advertising. This may be the short-term plan, covering (parts of) the development cost.
c) No, but… Adobe just see this as advertisement and “trial balloon” anyway, so they actually do not care about monetization right now. They intend to build a service that can take up the fight with flickr (and Yahoo! and thus, soon-to-be Microsoft), and worry about monetization later. They certainly have the funds to do that, and it would be smart to first see whether they can create a relevant community (which I believe they can), or whether they remain to cater for a professional niche with their online product range.
Too bad they won’t offer revenue sharing agreements to their popular photographers, who explicitely allow Adobe to sell or sub-licence their shared content, allowing photographers to earn a few bucks off their content. This would be a smart move as it would be something that flickr, for example, has not been offering to their community yet.
Ah, interesting times.
Yes, interesting times, and a very interesting analysis of the whole situation. Still, one thing I thought that is still left without being addressed, are the rights to YOUR CONTENT that Adobe grants other users. I posted more details on this issue on my blog.
Hi George, thanks for your comment. Your article is indeed a very interesting read, putting more light on this mostly overlooked issue with their ToU. — Mark