Instagram says 'take it or leave it' in lawsuit over terms of use

Instagram has asked a court in California to dismiss a class-action lawsuit brought by a user

Instagram has asked a court to dismiss a class-action lawsuit against changes in its terms of use, holding that the petitioner had the option to terminate her account if she disagreed with the new terms.

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The photo-sharing service, acquired by Facebook in August, also said in a filing Wednesday that plaintiff Lucy Funes does not allege that Instagram ever misappropriated her content, but holds that the new terms transfer "valuable property rights" to Instagram by granting it a sub-licensable, transferable, non-exclusive license to content that users post through the Instagram service.

A non-exclusive license does not transfer ownership of copyright to the licensee, Instagram said in the filing. The copyright owner simply permits the use of a copyrighted work in a particular manner, it added.

The lawsuit filed in December by the Instagram user in the U.S. District Court for the Northern District of California, San Francisco division, accused Instagram of violating the property rights of its users and breaching its existing terms of service.

"To access and use Instagram's free online photo-sharing service, individuals must agree to be bound by Instagram's terms of use," said Instagram in its Wednesday filing.

"Plaintiff here, however, seeks special treatment: she wants to continue to use Instagram and to use this lawsuit to rewrite the terms that govern her and other individuals' use of the service," said the filing, which argued that a federal court is not the appropriate forum to resolve such a dispute.

Facebook closed its Instagram acquisition in August after receiving approvals from regulators including the U.S. Federal Trade Commission and the U.K. Office of Fair Trading.

Instagram announced proposed changes to its terms of service and privacy policy in December. But facing user concerns about possible misuse of their content in advertisements, Instagram said on Dec. 20 it would roll back controversial advertising sections of its new privacy policy and terms of service to the original version in effect since the company launched its service in October 2010. The new privacy policy and terms of service were to come into effect on Jan. 19. The company also reassured users that it had no plans to sell user content such as photos.

Funes, an active users of the service, sued Instagram on Dec. 21, according to the Instagram filing. She does not appear to have discontinued her use of Instagram after Jan. 19, the day Instagram adopted the new terms that it had proposed on Dec. 20, it added.

The petitioner hence lacks standing because she could have avoided the alleged harm that she claims to have suffered by deleting her account before the new terms went into effect on Jan. 19, according to the filing.

In its new terms of use, Instagram has left itself the option to place ads in conjunction with user content, and also introduced an arbitration clause that prevents users from participating in class-action lawsuits to resolve disputes except in some circumstances.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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