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Instagram Says Service Terms Will Pass Scrutiny

SAN FRANCISCO (CN) - Instagram asked a federal judge to dismiss claims over terms of service that the popular photo-sharing company adopted earlier this year.

The proposed federal class action lawsuit, filed in San Francisco in December by Instagram user Lucy Funes, accused the service of breach of contract after it announced changes to its terms of service that would become effective in January 2013.

Funes said that the company's claim to have the right to use people's pictures in perpetuity and restrict how they can seek redress constitutes illegal misappropriation of property and violates California civil codes as well as Instagram's own former terms.

After announcing its terms-of-services changes, Instagram, which was bought by Facebook last year, quickly backpedaled in the face of widespread complaints from users who feared that their photos would be sold or used for ads without permission. Instagram announced a revision to the new changes, replacing the advertising provision with its prior terms. Funes' suit was filed the day after this announcement.

In Wednesday's motion to dismiss, Instagram says Funes has no right to bring her claim because she could have deleted her account before the changes took place. She did not, however, and has continued to access her account since enactment of the changes on Jan. 19.

"To access and use Instagram's free online photo-sharing service, individuals must agree to be bound by Instagram's terms of use," the dismissal motion states. "Individuals who do not agree to these terms are free to not use the service or to terminate their accounts, just as with any other free service on the Internet. 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. A federal court is not the appropriate forum to resolve such a dispute."

Funes also claimed in her suit that the new sublicensable, transferable, nonexclusive license to content that users post through the Instagram service violates California law.

Instagram argues that Funes cannot "plausibly claim harm because Instagram required users under its new terms to agree to" that deal "in exchange for their free use of Instagram's service."

"A non-exclusive license (whether or not it is 'transferable' and 'sub-licensable') does not, as a matter of law, diminish a user's property rights," it wrote. "And, again, plaintiff could have terminated her account if she did not wish to grant Instagram such a license."

Instagram also pointed out that both the prior and new terms of use "emphasize that plaintiff owns the content she posts through Instagram's service."

Instagram is represented by Mazda Antia with Cooley LLP in San Diego.

A hearing date is set for April 4.

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