Adobe’s Terms of Service Debacle

Earlier this week, Adobe, the makers of Photoshop, Premiere Pro and other popular creator tools, began requiring users to agree to their new terms of service (TOS). Though the TOS is dated February 17, it went largely unnoticed until the popups appeared this week.

And noticed it has been.

Adobe Creative Cloud users, particularly Photoshop users, are furious over the new TOS. They have taken to social media, particularly X (formerly Twitter), to vent their frustrations at the company.

Their concerns are two-fold. First, they are concerned that the new TOS grants Adobe access to all their private documents “through both automated and manual methods.” Second, they worry about a new license that appears to grant Adobe broad rights over user content.

At least one representative from Adobe has responded to the issue. Jérémie Noguer, Substance 3D ecosystem’s Product Director, responded on X, saying, “We are not accessing or reading Substance users’ projects in any way, shape or form nor are we planning to or have any means to do it in the first place.”

However, that statement hasn’t done much to placate the backlash. Some refer to it as a “privacy nightmare,” while others say it is “basically spyware.”

So, how bad are the new terms? I decided to look at the actual language to find out for myself.

The Two Controversial Sections

Users are primarily concerned about two sections in the new terms of service. The first is section 2.2, entitled “Our Access to Your Content.”

We may access, view, or listen to your Content (defined in section 4.1 (Content) below) through both automated and manual methods, but only in limited ways, and only as permitted by law. For example, in order to provide the Services and Software, we may need to access, view, or listen to your Content to (A) respond to Feedback or support requests; (B) detect, prevent, or otherwise address fraud, security, legal, or technical issues; and (C) enforce the Terms, as further set forth in Section 4.1 below. Our automated systems may analyze your Content and Creative Cloud Customer Fonts (defined in section 3.10 (Creative Cloud Customer Fonts) below) using techniques such as machine learning in order to improve our Services and Software and the user experience.

Adobe Terms of Service – Section 2.2

The concern here is twofold. Users are worried about their own privacy, specifically about Adobe accessing their personal files without permission. The other is that many creatives use Adobe software to work for clients, much of it covered under NDAs or other privacy obligations.

https://twitter.com/SamSantala/status/1798292952219091042

The reason for the concern is apparent. While the section lists examples of why Adobe may access user content, those are just examples and are not meant to be an all-inclusive list. However, even within that list, enforcing their terms or addressing technical issues are broad categories that could include various reasons.

The only actual limitations are “but only in limited ways, and only as permitted by law.” That doesn’t provide a lot of promise that Adobe won’t access user files.

This is paired with a second section, 4.2, which is entitled “Licenses to Your Content.” That section reads:

Solely for the purposes of operating or improving the Services and Software, you grant us a non-exclusive, worldwide, royalty-free sublicensable, license, to use, reproduce, publicly display, distribute, modify, create derivative works based on, publicly perform, and translate the Content. For example, we may sublicense our right to the Content to our service providers or to other users to allow the Services and Software to operate as intended, such as enabling you to share photos with others. Separately, section 4.6 (Feedback) below covers any Feedback that you provide to us.

Adobe Terms of Service – Section 4.2

This section caught the attention of Adobe users for a simple reason: It grants Adobe a broad swath of rights, including the ability to sublicense user content to third parties.

However, this section is less worrisome as it has a bigger restriction: “Solely for the purposes of operating or improving the Services and Software.” Theoretically, this should bar any use that isn’t directly related to operating the service.

While it grants Adobe the ability to sublicense the content, that would likely only apply if it hired a third party to create a new feature or if the company was sold. You can find similar terms in just about any service that hosts content for users online.

However, that may be the exact problem. Adobe’s TOS may simply be too broad.

An Incredibly Broad Terms of Service

In the first paragraph of Adobe’s TOS, it states that it applies to:

Your use of and access to our websites, web-based applications and products, customer support, discussion forums or other interactive areas or services, and services such as Creative Cloud (collectively, the “Services”) and your installation and use of any software that we include as part of the Services

Adobe Terms of Service – First Paragraph

In short, Adobe is drafting a single TOS that governs everything from accessing its website, uploading work to its servers and the use of standalone software. You can see this firsthand on their Terms of Use Page. Besides Adobe Acrobat, every current application and service points to this “General Terms of Use.”

To be clear, consolidating your terms of service is very appealing. It means you have only one document to maintain and one set of rules for people to follow. However, the applications and services underneath it are all very different.

This creates a problem. Terms that make sense for one product may not make sense for another. Noguer is probably right that there are no plans to search through Substance 3D user creations, but that language has to be in there because of Adobe’s cloud services.

As we’ve discussed in the past, terms of service tend to be very broad. Companies try to grant themselves as many rights as they can to cover any eventuality they can think of. However, when you draft one TOS to cover this many disparate products, you often claim rights that you didn’t intend or don’t make sense.

I have a feeling that’s exactly what has happened here. In an attempt to cover all their bases for all their products, they overreached significantly when it comes to many of their users.

That might have been a forgivable mistake, but the change is also ill-timed and poorly executed.

A Poorly-Timed and Poorly-Executed Change

Terms of service are often a matter of trust. Users routinely sign away massive swaths of rights and trust that the company won’t exploit them. However, Adobe is not in a position of trust right now.

In March 2023, Adobe and Nvidia announced the launch of Firefly, their new AI system. Firefly’s big selling point was that it could be trained on public domain or licensed content, including Adobe’s library of stock images.

This angered many photographers, including those who previously submitted work to Adobe’s library. However, Adobe’s embrace of AI has only tightened since then. Last month, Adobe’s chief strategy officer, Scott Belskey, referred to AI as “The new digital camera,” saying they needed to embrace the tech.

Days later, Adobe published an advertisement encouraging users to “Skip the photoshoot” and generate images rather than pay for photography.

Then, earlier this week, the Ansel Adams estate shamed the company for selling ‘Ansel Adams-style’ images generated by AI. Adobe removed the images following the public outcry. The estate said they had tried to work with Adobe multiple times about the issue in private but received no reply.

Adobe’s AI push has strained its relationship with photographers, artists, designers and filmmakers alike. The new TOS was simply a spark that lit the kindling the company’s policies had laid out.

However, things worsened when the users tried to decline the new agreement. They found they could not uninstall the software without agreeing to the new terms, which made agreeing to the terms a requirement, even if they just wanted to leave.

That was the gust of wind that helped turn the flame of discontent into a roaring inferno.

Bottom Line

The simple truth is that Adobe’s TOS is probably nowhere near as bad as users fear. If users trusted Adobe, this would probably be nothing more than a mild controversy caused by a TOS that tries to do too much at once. Users would likely assume error, not malice.

While having a single TOS may be a legally sound decision, it doesn’t play well in the court of public opinion. This is especially true when the company is already the target of legitimate mistrust and concern. Boxing users into it just makes the matter worse.

If Adobe wants to maintain this one TOS policy, it must be clear about what rights apply to what tools and services and specific about how these rights will be used. The current approach leaves many unanswered questions, and it cannot afford those right now.

Like I said, if this were any other company, this would be, at most, a mild controversy. But, for users already unhappy with Adobe’s policies, this simply confirmed their worst fears about the company.

Adobe has a lot of fence-mending to do. It can start by clarifying its TOS and explaining exactly what it intends to do. Until then, I expect we’ll see many more lists featuring alternatives to Adobe products.