Has ADOBE become invasive with “legal spyware” and can you loose your right to copyright enforcement?

Charles Moisant

ByCharles Moisant

June 11, 2024

I hope all the artists are doing well. However, this should be brought to your attention. Adobe’s recent update to its Terms of Service (ToS) has ignited criticism from users of its popular software products, including Photoshop and Substance 3D. The new terms grant Adobe extensive access to user projects, raising significant privacy concerns and accusations of spyware-like behavior. This article delves into the controversial changes, their potential for abuse, and their implications for users and the broader tech industry.

What If the new terms and services cause the Obsolescence of Copywriting Claims

The changes in Adobe’s ToS raise a critical question: Could these terms render some copyright claims obsolete? For instance, if Adobe uses a well-known and famous person’s art for their AI art program, and someone uses Adobe’s AI function to create derivative works because of the open license in section 4.2, do the original artists have a leg to stand on with their copyright claims? The expansive rights Adobe grants could potentially undermine traditional copyright protections, leaving artists with fewer avenues to defend their intellectual property. This underscores the need for robust legal frameworks and unambiguous terms that safeguard the rights of creators in the age of AI and digital innovation.

Controversial Terms of Service

Earlier this week, Adobe, renowned for its creative software, revised its General Terms of Use, causing widespread alarm. The new terms require users to grant Adobe unlimited access to all their materials, even those covered by non-disclosure agreements (NDAs), for “content review” and other purposes. This sweeping access has drawn comparisons to spyware tactics, with users fearing for their privacy and data security.

The updated ToS states that Adobe can access and review user-created content using automated and manual methods, including machine learning. This has led to speculation that Adobe intends to use user-generated content to train its AI models, aligning with its recent focus on generative artificial intelligence. Section 4.2 of the Terms of Use explicitly grants Adobe a royalty-free, sublicensable license to “use, reproduce, publicly display, distribute, modify, create derivative works based on, publicly perform, translate” users’ creations, a clause many find deeply concerning.

Adding to users’ frustration, uninstalling Photoshop via Adobe Uninstaller is nearly impossible without agreeing to these controversial ToS for the typical user. (“I would just “HACK OUT” the software.”) Moreover, even if users opt out of content analysis, Adobe can still access their content under “certain limited circumstances.” Despite the public outcry, Adobe has made no significant changes to these terms or taken any actions to address the concerns. Minor modifications made in February 2024 suggest Adobe might be waiting for the controversy to subside before making further decisions.

Ethical and Privacy Concerns

This situation mirrors the backlash against Microsoft’s Recall feature in Windows 11, which captures screenshots of user activities and allows access to apps, websites, documents, and emails through a created timeline. Both cases highlight the growing concerns about user privacy in the AI era and the ethical implications of tech giants’ data usage.

Adobe’s ToS update has drawn criticism from various quarters, including popular YouTuber DOOMCOCK, who discussed the issue in a video (https://www.youtube.com/watch?v=YBJt6IGxS70). 

DOOMCOCK highlighted the terms’ invasive nature and the potential misuse of user data. The video has garnered significant attention, reflecting the widespread unease among Adobe’s user base.

Legal and Commercial Implications

Section 4.2 of Adobe’s ToS provides a non-exclusive, worldwide, royalty-free, sublicensable license to use, reproduce, publicly display, distribute, modify, create derivative works based on, publicly perform, and translate user content. Adobe can sublicense these rights to service providers or other users to enable the software to operate as intended, such as sharing photos. This broad license has raised concerns about the potential for commercial exploitation of user content without proper compensation or acknowledgment.

Further complicating matters, Adobe’s ToS also addresses the use of generative AI features. If Adobe designates a beta version of a generative AI feature as non-commercial, the outputs from that feature are for personal use only and cannot be used commercially. This stipulation can cause confusion among users about the commercial viability of their creations.

Adobe has attempted to address the backlash through blog posts, but these efforts have been criticized as inadequate, given the serious legal implications of the new terms. The company has stated that it may take action on user accounts if content or behavior violates its guidelines, further contributing to user anxiety about the potential consequences of using Adobe’s generative AI features.

Adobe’s Clarification Blog Post

In response to the backlash, Adobe published a blog post on June 6, 2024, attempting to clarify the updated terms of use. The post’s goal is to reassure users that Adobe does not intend to misuse their content and that the changes are meant to improve service functionality and user experience.

The Adobe blog states:

“The updated Terms of Use do not grant Adobe rights to use your content beyond what is necessary to provide and improve the services we offer. We do not claim ownership of your content. You retain all rights to your content, and Adobe will only use it as described in the terms.” 

 “Specifically, the updated terms are designed to enable features like content synchronization, sharing, and backup. We are committed to transparency and want to assure our users that their privacy and the security of their data remain our top priorities.”

Despite these assurances, many users remain skeptical. The language of the terms, particularly the broad license granted to Adobe, seems to contradict the company’s reassurances. Users are concerned that Adobe’s interpretation of what is “necessary to provide and improve the services” could be stretched to include extensive data mining and AI training, potentially infringing on user privacy and intellectual property rights.

Potential for Abuse

The potential for abuse of these terms is significant. By granting itself such broad access and rights to user content, Adobe opens the door to several troubling scenarios. For example, artists who use Adobe’s software for their creative work may find their original creations being used to train AI models without their explicit consent or compensation. This could lead to AI-generated art that closely mimics or outright replicates their style, effectively diluting the market for their unique creations.
Moreover, the sublicensable nature of the license means that Adobe can grant third parties’ access to user content. This raises concerns about who else might gain access to sensitive or proprietary information. Users who work with confidential data, such as designers working on unreleased products or marketing materials, may find their content being shared and analyzed without their knowledge, potentially leading to breaches of confidentiality and competitive disadvantage.

Implications for Copywriting and Intellectual Property

The controversy surrounding Adobe’s ToS raises significant questions about the future of copywriting and intellectual property. If an artist’s work, such as that of Mike Pulido, is used by Adobe for its AI art program, and someone uses Adobe’s AI function to create new artwork based on Pulido’s work, the original artist’s copywriting claims could be undermined. The broad license granted to Adobe under section 4.2 allows the company to modify and create derivative works based on user content, potentially rendering traditional copyright protections obsolete.
Artists and creators may find it challenging to assert their intellectual property rights in the face of such expansive terms. The legal landscape for creative works is evolving rapidly with the advent of AI technologies, and existing copyright laws may need to be reexamined to ensure they provide adequate protection in this new context.

Ethical Considerations and User Trust

The ethical implications of Adobe’s updated ToS cannot be ignored. By granting itself such extensive rights to user content, Adobe risks eroding the trust of its user base. Trust is paramount in the relationship between software providers and their users, mainly when it involves creative professionals who rely on these tools for their livelihood.

Adobe’s perceived overreach could lead to a backlash from individual users and the broader creative community. If users feel their rights and privacy are being compromised, they may seek alternatives to Adobe’s software, impacting the company’s market share and reputation. Competitors offering more user-friendly and privacy-respecting terms could capitalize on this discontent, attracting users away from Adobe.

User Response and Advocacy

The backlash against Adobe’s ToS update has galvanized user advocacy, with many calling for more transparent and user-friendly terms. Advocacy groups and industry leaders are pushing for clearer guidelines and stronger protections for user content. This movement highlights the importance of user input and engagement in shaping the policies of major tech companies.

Users are encouraged to voice their concerns and demand more transparency from Adobe. By engaging in dialogue with the company and advocating for their rights, users can help ensure that their privacy and intellectual property are respected. Collective action and user advocacy can drive change and hold companies accountable for their policies and practices.

Final, personal thoughts

Adobe’s recent ToS update has sparked backlash due to its invasive and potentially exploitative terms. The controversy highlights broader concerns about privacy, data usage, and the future of intellectual property in the AI era. As technology advances, companies must balance innovation with respect for user rights and ethical considerations.

The evolving landscape of AI and generative technologies poses new copyright and intellectual property challenges. Adobe’s controversial ToS update is a stark reminder of the need for clear, fair, and transparent policies that protect users and their creative works. As we move forward, it is essential to address these issues to ensure that the rights of artists and creators are upheld in an increasingly digital world.

https://www.adobe.com/legal/licenses-terms/adobe-gen-ai-user-guidelines.html#:~:text=In%20general%2C%20you%20may%20use,and%20cannot%20be%20used%20commercially.

https://www.adobe.com/legal/terms.html

(https://www.youtube.com/watch?v=YBJt6IGxS70)

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