This point hit home recently when looking at the mini-storm that broke out regarding Adobe’s new Photoshop Express service. Like everything else on the web signing up for Photoshop Express is free – at least for the first 2GB of storage space. However, the original terms and conditions made it clear that by posting to the public galleries you were granting Adobe a “worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from… such Content.” (terms since entirely rewritten)

Like everyone else my original reaction was horror. They’re planning to sell on my photos! How dare they? All that money should be coming to me! Daylight robbery!

But let’s stand back a little… and get real.

To begin with: of course Adobe wants to make money from developing and hosting the Photoshop Express site. It has to make money to pay for the developers’ time and expertise and the considerable hosting infrastructure costs involved and for the shareholders’ investment. That’s not greed it’s common sense.

More to the point, it’s actually in your interest for Adobe to make money from the site – that way it can put more money into making the site better, adding new functionality, boosting free space and so on. In short: give you more for free.

So how do you actually go about making money on the web? For non-ecommerce content-based sites the answer is simple: by including links to e-commerce sites that are paid-for as advertising or through commission. It’s not selling directly but it’s selling-on the chance of selling directly.

So maybe advertising was all that Adobe ever meant by “deriving remuneration”. Certainly the quickly revised terms make it clear that “These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis.” Panic over. It’s only indirect selling. Status quo restored.

But would it necessarily be so bad if Adobe really did want to directly sell on your photos? Are there no circumstances in which you’d sign up to those original terms?

After all what are your photos actually worth? Be honest now. When was the last time an agency got in touch to ask if you had a great picture of a penguin at dusk or a rotting apple? Of course you might happen to have just what they want on your hard disk but without an intermediary site the sale would simply never happen. In other words: you wouldn’t actually be losing anything real.

But clearly Adobe would be gaining (assuming that anyone ever did buy one of your images) and that’s not fair. But it’s gaining already through those paid-for links and no-one minds about that. And remember you actually want Adobe to gain if it’s not coming out of your pocket.

OK but if Adobe gains you should too – and directly. Agreed – but what? On reflection, the answer is obvious: unlimited storage. If I had to choose between shelling out actual cash to get the clear benefit of unlimited storage – currently $25 per year on Flickr – or giving up a purely theoretical right to commercial usage that simply wouldn’t happen otherwise I might well choose the latter. If enough others did too Adobe would quickly build up an enormous stock photo resource and, with it, another relatively painless model for generating revenue to help keep providing a valuable service for free.

More to the point it would also enable its members’ photos to reach a wider audience. Isn’t that what photo sharing is for?

8. Use of Your Content. Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

You don’t have to be a lawyer to see that basically you were handing over your all rights as originator and giving Adobe free rein to make money from your photos however it saw fit!

Adobe responded quickly to dowse the inevitable flames with John Nack quoting the PSX team as saying “The original terms of service implied things we would never do with the content within Photoshop Express.” More importantly the relevant terms and conditions were quickly updated and are entirely different and much more end-user friendly in all ways.

So is that the end of the matter? Well it certainly means that the conditions are no worse than those commonly found on photo sharing sites such as Flickr and so should be no bar to joining up to Photoshop Express and taking it for a spin (it’s well worth a look if only to see what modern Flex-based RIAs are capable of).

However is this a case of “there’s no smoke without fire”? After all you don’t normally leave lawyers to just come up with something off the top of their heads (expensive) and then post it up to see if anyone complains (very expensive). And did no-one at Adobe think of looking at how other photo sharing sites managed copyright before launching such a major new service?

Moreover, while the Terms and Conditions have been updated, at the time of writing, the Photo Express FAQ still reads:

“What rights do I have to my photos?”#! Excuse me – splutter – but that phrasing is just bizarre. To my mind the implication is that having transferred all rights going to Adobe I now need to be told which rights Adobe is kind enough to let me retain.

Am I the only one that’s not entirely convinced that this all an innocent mistake but smacks of something a little bit deeper like a planned policy?

But before I get accused of an anti-Adobe conspiracy theory, I’ll float another question that I intend to return to shortly in a follow-up post: Are there really no circumstances in which you’d be happy to sign up to those original terms?