Instagram’s famous new terms of service go into effect Saturday. News organizations just got a serious warning about plucking photographs from Twitter. Wouldn’t this be a great time for a news org to have a copyright lawyer on staff?
Verge Managing Editor Nilay Patel is a former copyright attorney. Last December, when what seemed like the entire Internet freaked out about Instagram’s new terms, Patel wrote a post explaining why they “actually make things clearer and — importantly — more limited.” Instagram caved anyway. “That certainly sounds like a win for consumers, but it’s actually a loss,” he wrote:
[T]he newly-reinstated terms of service clause is objectively worse for users than the new one, and it’s worded far more vaguely — the language feels familiar and comforting, but you’re giving up more rights to your photos.
“Tech bloggers in particular are trained to believe they can horsepower their way through a story,” Patel told Poynter in a telephone interview. “You need to have the training.”
Patel once wrote terms of service himself. After he graduated from the University of Wisconsin’s law school, he worked for Saper Law Offices in Chicago. Napster’s excruciating legal woes inspired Patel to make copyright his life’s work as an undergrad, he said. “I got in a huge fight with University of Chicago about whether they had the right to block Napster on the campus.” (Patel was in a bands such as the 68s and the Heaven Seventies, in which he played guitar.)
But life as an attorney wasn’t the crusading romp he thought it would be. Patel said he spent a lot of his time at Saper advising college kids accused of copyright infringement for file-sharing to settle: “You don’t get to win. You barely get to fight,” he said. “All those cases settle for $5,000. I was telling college kids at DePaul you’ve got to drop out of school for a semester and work at a pizza joint.”
He also was writing for the tech website Engadget, a gig he got by emailing the site and saying he thought their legal coverage was subpar. When Engadget offered him a full-time job in 2008, Patel said, “The decision to quit being a lawyer, in my mind, took agonizing nights staring into a bottle.” His wife, he said, remembers that he actually made the decision quickly.
After Engadget Editor Josh Topolsky left the site in the spring of 2011, reportedly frustrated with AOL management, Patel followed him to The Verge, which launched that November.
Patel said that at The Verge, he does “Law School 101″ with his reporting, trying to make lawyer-talk parseable by humans (his term). “Lawyers tend to write for each other in this coded language that looks like English but is definitely not English,” he said. “I think that’s the reason people dislike lawyers: Lawyers demand a formality and strictness to language.”
Take Instagram, again. “The phrase ‘Instagram can sell your photos is a totally legally nebulous phrase,” Patel said. “It doesn’t mean anything.” Other reports were “saying Instagram was selling your photo and would license it to a hotel. Those are way outside the boundaries of what that license said.”
When it comes to legal reporting, news organizations provide readers “an endless series of fails,” Patel said. Part of the problem: Legal narratives, he said, rarely have a satisfying ending. When Apple sued New York City over its plan to place a green apple symbol on taxicabs, it wasn’t an example of the computer company being in a “particularly litigious mood,” as a New York Times reporter wrote; it was actually “a system working as intended,” Patel said. “What they’re gonna do is reach an agreement like all these big companies do. The ‘It’ll be fine’ never got reported.”
Inadequate legal reporting, Patel said, prevents “a positive interaction with the system.” He wants readers to “build companies and contribute back to this world we all love. Telling them “the patent system is gonna fuck you,” for instance, reinforces “the belief that they can’t do things.”
I asked Patel if media criticism is a major component of his job. He wishes it weren’t, he said. He’s most proud of The Verge’s coverage of the Apple-Samsung trial, which “had no element of media criticism to it at all.”
So why aren’t more news organizations hiring lawyers to write for humans? It can’t be that no one’s available: “That’s the funniest thing to me,” Patel said. “There’s this whole army of unemployed law-school grads and none of them is competing with me.”