Musings on Photography

Adobe Photoshop Express Online

Posted in business, ethics, photoshop, software by Paul Butzi on March 28, 2008

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I see (in uncountably many places) that Adobe have released their spiffy, wonderful new online version of Photoshop Express. It will be, we are led to believe, all singing, all dancing, and will make our beds, cook our breakfasts, and keep our mugs of tea warm all the time.

So I went to the website to take a look, and because I am sort of paranoid about such things, I first took a look at the ‘Terms’, the link to which is in light gray on a grey background (almost as if Adobe would prefer that you not look at them). The terms linked to at the target to that link link further on to further terms, where we must scroll down through several pages of dense legal boilerplate before we find the following:

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.

The upshot is that any time you submit a photo for inclusion in the publicly accessible area, you are giving the photo to Adobe. Period. They’re not claiming ownership of your content. But if someone can point out something that owning your content would allow them to do that this license doesn’t let them do, I’ll be mighty surprised.

Now, Adobe are free to place any licensing agreement on their software they like. But I think this is a horrible, disgusting, unethical, lowdown, scumsucking, awful, pathetic rights grab here.

I hope nobody ever uses this online software, ever. Because I’m sure that now the uproar is started about this disgusting license, Adobe will knuckle under and remove this rights grab crap. But I’d also note that they reserve the right to change the terms at any time, and I’ll bet a nice breakfast that eventually Adobe will submarine that rights grab right in there again. I’m willing to make that wager because anyone who would put those terms into the license to begin with is such ethical scum that they’d try to get it back in there later.

I hope they all lose their jobs and have to beg on street corners. And this time, I really mean it.

19 Responses

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  1. Lawrence Plummer said, on March 28, 2008 at 12:18 pm

    Apparently, in response to inquiries, this will be changing:
    http://www.adobe.com/cfusion/webforums/forum/messageview.cfm?forumid=74&catid=684&threadid=1349048&enterthread=y
    larry

  2. Peter in Bangkok said, on March 28, 2008 at 12:29 pm

    Well good if they are changing it, but still rather disappointing that they even had it published. I guess that is what happens when some people in the legal department take over…
    I think I pass this “service”.

  3. Wade Heninger said, on March 28, 2008 at 1:37 pm

    Street corners, eh?

    Good thing I have nothing to do with this.

  4. Paul Butzi said, on March 28, 2008 at 1:48 pm

    …this will be changing

    Sure. The questions are
    1. What will it change to?
    2. Will it change back?
    3. What the heck is wrong with these guys that it started out this way?

    It’s not as if Adobe has a stellar record and has never tried to slip one past previously. It’s something they’re becoming famous for doing.

    At some point you start to get the message that they don’t care about customers beyond wanting to rip them off.

  5. Martin Doonan said, on March 28, 2008 at 2:24 pm

    The way things are going with Adobe, I’m getting the feeling that Monty Burns has secretly taken control.

    Love today’s photo, by the way, one of the most intriguing of the series.

  6. Paul said, on March 28, 2008 at 2:27 pm

    Amazing! They knew about it all along, but somehow, it just ‘slipped’ passed them. It’s interesting about how many controls they try to put in place to keep themselves from getting ripped off. Yet, with a few carefully placed words, that was their intention to do just that to their customers!

    Great catch, Paul.

  7. John Nack said, on March 28, 2008 at 3:43 pm

    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. (Do you really give Adobe credit for being wily enough to be developing nefarious schemes? :-)) As I type this my boss is talking with Legal about getting this sorted out.

  8. Paul Butzi said, on March 28, 2008 at 4:05 pm

    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.

    Yeah, sure. To me, the protestation “overshot the mark” means “decided to just take all the chips on the table, but got caught while doing it”.

    Lawyers don’t overshoot the mark. By and large, lawyers hit the target at which they aim.

    Face it. No lawyer worth hiring writes into the license “Oh, and by the way, we get a free, non-revocable license to do whatever we want with everything you touch with this tool” without meaning it.

    You and the rest of the folks at Adobe tried an egregious overreaching IP rights grab, you got caught on it, and now you look bad. Well deserved, I’d say. I hope it turns around, bites you on the fanny, and you end up begging on the street corner. Literally. You guys deserve it. I have just had it with jackals who never, ever miss a chance to try to rip someone off.

    I’m really sorry to be the one to tell you but the folks at Adobe are getting a reputation, and it’s not the good sort.

    Do you really give Adobe credit for being wily enough to be developing nefarious schemes?

    I think you’re a bunch of disgusting filth, to be honest, and not only do I believe that you’d happily do nefarious things to put another buck in your pocket, I believe that you can’t be trusted at all.

    As I type this my boss is talking with Legal about getting this sorted out.

    Here’s a better way to get it sorted out. Instead of talking to the people in Legal, you should all go and start FIRING people in legal. Keep firing them until you’re confident you’ve fired the lawyer who is responsible for this. Tell Adobe HR they are ineligible for rehire.

    That would actually convince me that you were serious about it. Anything else, you’re just another bunch of jerks who got caught with your hand in the cookie jar.

  9. Chris said, on March 28, 2008 at 5:00 pm

    Perhaps the reason that people keep talking about Photoshop killers is because we need a Photoshop killer. I’ve never considered Adobe to be a reputable company to deal with. Headaches with their “free” reader installing crap that I can’t get rid of and their price gouging are just the tip of the iceberg to me.

    I use only one of their products regularly, and once I have a good cover flow system with my OS X upgrade Lightroom will be of little use to me (especially considering the how ham-handed their raw processing is).

  10. Gary Filkins said, on March 28, 2008 at 5:43 pm

    Question for John Nack:

    Do you take photos, John?

    If you do, would you give them to me? Well, not *give* them, but let me have free, permanent (as in perpetual), irrevocable access to do whatever I or my heirs — oh, hell, let’s just use the wording from that little ditty your legal dept. overshot …

    You see, John, we sort of know that Adobe is a big company. We should — we pay for it in our own way when we buy (and sometimes simply USE) your software. Adobe is large and powerful and full or arguably talented people who damn well OUGHT to know how to proof read a little thing like a user agreement addendum.

    So please … as in, what the hell is wrong with you ?!?!? … please, don’t insult us by suggesting that nobody in or out of any dept. at Adobe had the presence of mind to have noticed that clause and wondered if it might chafe a user or two.

    We just did this dance to a slightly different tune a short while ago with the software-phoning-home fiasco that you also weighed in on with a similarly disingenuous story about “gee whiz, we didn’t know the IP address was gonna smell like a sneaky ruse when we snuck its use into the code …”

    It’s simple, John — really it is. Adobe wants to look and be seen as benign and friendly. Sadly for Adobe, when it stands like an arrogant dragon on the bones of a vanquished user community while protesting its innocence to the world, there’s a good chance anyone with eyes will see the flesh and blood still dribbling from its teeth as it tries to smile sheepishly for the cameras.

    Accidents like this don’t happen once at a company worthy of Adobe’s stature. They’re that much less likely to happen more than once. This is twice I personally know of. That makes them other than accidental.

    Here’s my suggestion to how you might convince me — send me (and any user who requests it) a free for life, perpetually renewable certificate that can be redeemed for upgrades, updates, add-ons and general candy for any and all Adobe software they currently own or use — in perpetuity. Also grant them certificates to buy NEW titles in the Adobe stable for the cost of 1 Gallon of White Wash at whatever is current retail at time of redemption and then apply the same permanently renewable update/upgrade status to that.

    Finally — and in the interest of any who think I may have overshot — I’ve got a cold and my medication may be impacting my legal judgment right now so I reserve the right to amend this rant in the future and you’ll be held to any future rant addendums by virtue of your willingness to have read this far …

  11. Paul Politis said, on March 28, 2008 at 5:46 pm

    “The people who wrote the legalese overshot the mark–that’s all.”

    That’s hilarious. I suppose the lawyers then went and posted their work directly to the Adobe website without any one else at Adobe reading their handiwork first.

    I’m not sure what’s more insulting, that response, or the passage in the Terms of Service itself.

  12. Ed Richards said, on March 28, 2008 at 6:44 pm

    > But if someone can point out somethat that owning your content would allow them to do that this license doesn’t let them do, I’ll be mighty surprised.

    Prevent you from using the work yourself – that is the one thing that a non-exclusive license will not let them do.

    I have to say, being a law professor, that having someone at a corporation blame the lawyers for an overreaching contract is a hoot. Lawyers do exactly what they believe the corporate culture of their client demands.

    I do not buy into the Adobe folks are scum view – they are just corporate citizens whose duty is their shareholders, not the public. Their duty is to screw the public as much as possible to make money, within the bounds of the law. Our duty as lawyers is to help them explore how far they can go within the bounds of the law. As a society, if we do not like this, we have to change the law. Unfortunately, most people do not care, so corporations have pretty much owned Congress for a long time, without regard to who is president.

  13. Paul Butzi said, on March 28, 2008 at 7:56 pm

    I do not buy into the Adobe folks are scum view – they are just corporate citizens whose duty is their shareholders, not the public. Their duty is to screw the public as much as possible to make money, within the bounds of the law.

    I think that’s a widespread view, but I also think it’s incorrect. Their duty is to generate the greatest possible increase in shareholder value and shareholder return without breaking the law. There are legitimate decisions where it’s appropriate to trade future return to get higher immediate return, but in general the short term stock price (and thus immediate shareholder value) has the long term revenue priced in.

    Screwing your customers is NOT the way to maximize shareholder value. Screwing customers makes the customers think you are low-life scum, and that’s because – get this – it’s entirely appropriate for customers who have been ripped off to view the company that ripped them off as low-life scum.

    And that customer who thinks you are scum is less likely to buy your products in the future, more likely to switch to your competitors’ products, and less likely to upgrade the stuff he bought from you. That translates directly to lower sales, lower profits, and a lower stock value.

    Our duty as lawyers is to help them explore how far they can go within the bounds of the law. As a society, if we do not like this, we have to change the law.

    I agree that that’s exactly what the role of the lawyer is. The lawyer’s job is not to decide on the business plan.

    But changing the law is not the only recourse. It’s also possible to change the behavior of a company by making the market response to those behaviors be negative and unmistakable.

    If that weren’t the case, we wouldn’t have a product manager employed by Adobe (Mr. Nack, above) posting comments here, would we?

    Companies can (and should) understand that just because something is legal does not mean it’s good business practice, doesn’t mean that they will, in the long run, make more money, and doesn’t mean they’re properly discharging their duty to the shareholders.

  14. Jobo said, on March 29, 2008 at 2:24 am

    I would be happy to buy a copy of Photoshop, if it came with a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, and translate Photoshop (in whole or in part) and to incorporate Photoshop into other works in any format or medium now known or later developed.

    The likelihood that an IP licensing lawyer would misunderstand something like that is nil.

  15. Ed Richards said, on March 29, 2008 at 3:13 pm

    > If that weren’t the case, we wouldn’t have a product manager employed by Adobe (Mr. Nack, above) posting comments here, would we?

    You mean spinning their policy? Perhaps I should have been more technical – “screwing” means maximizing business opportunity in the short run because shareholder value in the long term is so heavily discounted in today’s market as to be inconsequential. Look at Bear Stearns and the stupid high risk bets they made just to pump up short term revenue.

    Adobe is fundamentally right – most users do not care. You raised this in a previous post wondering why Bebo should walk away with 700M based on the value of the user’s content. Google says do no evil, then they are coopted by the Chinese government – do we see massive boycotts of their site? (Maybe we do – I see paid clicks are down.)

  16. Martin Doonan said, on March 29, 2008 at 3:31 pm

    I’m not quite sure I agree with the idea that corporate lawyers (CLs) are there to support revenues. My recent experience with 2 sets of CLs is that their purpose is to protect the company from potential future litigation. I can see the argument at Adobe going along the lines of “what if one of our employees decides to wrongly use one of these shots and we get sued?” That doesn’t mean I condone the clause, far from it. It’s just easier to cover the company from dumb employees with such a clause.

    In the run of business to business agreements each set of CLs slugs it out over acceptability of such clauses. trouble with personal user agreements is that we don’t get the chance to counter the agreement with our own version and there is no one checking these things up front for us.

    As to Mr Nack’s response, it’s comes across as rather disingenuous, even if he does believe what he’s saying. Sometimes I wonder if lawyers work for the same company as the rest of the employees, but there is no way I would criticise ours as a spokesman of the company.

    I really don’t like Adobe either – I think the products are becoming bloated, they are trying to take over my computer and there are all kinds of features that demand to connect to the web that I can’t turn off or opt out from installation. This is not user-friendly behaviour in my book.

  17. JohnL said, on March 30, 2008 at 3:22 pm

    Well said Paul!

    As an addition to your comments I would like to make the point re how the photographic community has in general been sucked into a self perpetuating, bottomless slush of payments to companies to ‘enjoy’ their photography in the new digital age!

    To my mind not only has photography been totally taken over by digital and the minimal number of companies that supply the products but we are also now in the hands of those companies, their accountants and shareholders to do with us and charge us as they see fit as and when they like.

    This digital industry has a major lack of competition and yet a slave-like addiction to such companies like Adobe that I can see will be the ruin of many budding photographers who do not possess a bulging wallet.

  18. Tuan said, on April 1, 2008 at 7:42 pm

    I am certainly sensitive about IP issues as copyright is the essence of a photographer’s ability to earn a living, yet I think there is a scenario in which Nack was sincere. They wanted rights to make screen shots of the product that included user images, and asked their lawyers a clause that covered everything that could be done from there. Yet the lawyers used much broader terms than were necessary, because those terms were easier to formulate. I don’t believe that they intended to profit from the user images, since they just got out of the stock photo business.

  19. […] April 5, 2008 Time for a followup to this post. […]


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