Design Domination Podcast Episode #179: Adobe’s New Terms of Service: What You Need to Know—With Matt the Lawyer

Music: https://www.bensound.com

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Getting to Know Matthew Johnston

Colleen Gratzer: Now, Matt, this is your fourth time on the podcast, so you get the reward for the most appearances.

Matt Johnston: I don’t know. “Repeat offender” sounds a little bit more appropriate.

Colleen: We’ve talked about design contracts. We’ve talked about copyright and trademarking. We’ve talked about plagiarism, and today we’re going to talk about legal terms specifically with Adobe’s recent fiasco with its terms of use changes, which has designers in an uproar.

But, first, I wanted to ask you, what’s your favorite thing about summer since it’s, you know, technically we’re almost in summer and, hey, it’s gonna be like 92 degrees today?

Matt: Well, I actually… What I miss is the beach. I grew up in Florida.

Colleen: Ooh.

Matt: The beach was like 45 minutes away.

Colleen: Oh, so jealous.

Matt: But I do like…Our neighborhood has a pool, which is really nice, so I enjoy that. I’m a big, big soccer fan. Basically, at this time of the year, the only thing around is major league soccer—the U.S. League, and things like that.

So yeah, those are the kind of the things that I really enjoy about the summer. But, yeah, the pool is always nice.

Colleen: Yeah. I don’t think I knew—or if I did, I forgot—that you were from Florida. Where in Florida?

Matt: Yeah, I grew up just outside of Jacksonville, in a town called Orange Park.

Colleen: Okay.

Matt: Although I probably wouldn’t call it a town now. It’s about the size of Frederick.

My father got stationed in Jacksonville when I was five and we were just very, very lucky to be able to stay there, until I enlisted in the Navy.

So yeah, it was great. It’s a great place to live and it’s a great place to visit. My brother still lives down there. My mom still lives down there. So yeah.

Colleen: Oh, wow. Well, I almost went to college in St. Augustine at Flagler.

Matt: At Flagler?

Colleen: Yes, a very small school.

Matt: It is a small school. My oldest daughter briefly considered going there.

Colleen: Oh, my God. It’s so beautiful.

Matt: Yeah, it’s a gorgeous place. If, for those of you who are listening, watching, if you haven’t been to St. Augustine, go! It is a curious mix of crazy touristy stuff, but the local vibe is really cool as well.

Colleen: Yeah. Oh, cool. Yeah. Tell her she should go.

Matt: Well, she’s done. My oldest has graduated.

Colleen: Okay.

Matt: Yeah. That’s how long we’ve known each other. When he started off, they were both in high school, but yeah.

Colleen: Oh, wow. That’s funny.

Okay, so my other question… I have to ask this question for this episode.

Matt: Okay.

Colleen: As a lawyer, do you read all the terms of service terms of use or service on all the software and everything that you use or…?

Matt: No. Let’s be honest. No. I mean, it’s typically 15, 20, 30 pages.

I’m cognizant of the fact that that’s a tad hypocritical as an attorney, but when I’m purchasing software, or where I’m using something, if I’m worried about where the data is going to go, I worry about that.

My practice management software that I use. I read that very carefully, because I needed to make sure that client data, credit card data, things like that were secure, and things of that nature.

But I use Adobe Acrobat. Did I read all of the terms and services? No. But I do one of the things that we’ll talk about I’m sure is I don’t store anything on the Adobe Cloud. Period.

Matt: II use the software but I never save it to the cloud. It stays either on my desktop or it stays in the practice management software.

So, yeah, but, no. I don’t read it all. I dare you to find a lawyer who does.

Colleen: Oh, really? Okay. All right.

I usually read the fine print but stuff like this, yeah, I don’t.

Why Designers Are in an Uproar Over Adobe Terms of Use

Colleen: Alright, so in case anybody’s not aware of what’s going on with Adobe and the terms of use and the uproar surrounding it, I just want to start off by explaining it a little bit.

Adobe published some terms of use on February 17 of this year. I don’t know the whole thing of what transpired between February 17 until a few days ago, when people started going crazy.

One of the sections in their terms of use is 2.2, and it’s called “Our access to your content.” They say:

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.

Okay, so then they referenced 4.1 Content. Well, that says:

“Content” means any text, information, communication, or material, such as audio files, video files, electronic documents, or images, that you upload, import into, embed for use by, or create using the Services and Software. We reserve the right (but do not have the obligation) to remove content or restrict access to Content, Services and Software if any of your content is found to be in violation of the terms.

Okay, so I didn’t read both of them in their entirety.

But designers… You are going to see this all over Twitter especially. Designers are all over Twitter saying they’re done with Adobe. They can’t trust them anymore. They’re so sick and tired of this.

Some designers have said they can’t even talk to customer support or even uninstall Photoshop unless they agree to these terms. They don’t want to.

The tweet I looked at yesterday had 426,000 views, 796 comments and 420 retweets.

So it’s been going crazy. More recently, from February, when they updated the terms, they said in a June 6 post,

“Given the explosion of Generative AI and our commitment to responsible innovation, we have added more human moderation to our content submissions review processes.”

Then they show the edits that were made to the terms. They’ve got stuff striked out. Then they say:

To be clear, “Adobe requires a limited license to access content solely for the purpose of operating or improving the services and software and to enforce our terms, and comply with the law, such as to protect against abusive content.

Then they said they don’t train Firefly Gen AI models on customer content, and they will never assume ownership of a customer’s work.

So you are here to help us break this down.

Matt: Sure. I think the first thing that you have to… Whenever you’re looking at a terms of service, you have to look at the whole as an entirety, as a whole.

There are lots of things that are in there that you may not like it, but you’ve been operating on those terms for for the entire thing.

A contract… If you ever gotten to a situation where you could sue Adobe—and you can’t do it class action. You waive that in the terms of service. You waive a class action lawsuit.

Colleen: Really?

Matt: Yeah, that’s pretty standard. They want you to go to arbitration and all this other stuff.

Can Adobe Use Your Content?

Matt: But leaving all of that aside, you have to read the whole contract. There are things in there that you can’t just ignore.

One of the things that people freaked out about was section 4.2. It’s just after the Content and says, “You grant us a limited license to do these things, to view the content.”

But everybody that I saw on Twitter was ignoring the dependent clause at the beginning of that sentence, which says, “for the purposes of improving the services and software.”

That’s it. That’s the reason why you’re granting them the limited license.

I can’t I think of… I think it was Scott…What’s his name? Scott Belsky or something like that? One of the Adobe higher-ups came on and was like, “Yeah, don’t forget about this part.”

He was right. You can’t forget about that part.

Now, the distrust of Adobe probably extends well beyond this particular one. I’m not as familiar with everybody freaking out. Again, I use Acrobat because I deal with a lot more documents. I’m not dealing with visual images and things like that.

Acrobat didn’t have an update—I don’t think it had an update to the terms of services—or at least I didn’t sign one back in February. I could be wrong. I could have just…It came up and it’s like, you know, updated terms of service.

Colleen: I don’t remember seeing anything.

Matt: Yeah, I’m not an Acrobat every day. Designers and photographers and stuff like that they’re in Photoshop every day, and I get that.

But going back to the changes in the thing, start by looking at the whole thing. Don’t cherry pick out because…A lot of people were cherry picking this thing out like, “Oh, they’re using my…They have a license to use my data for anything. They can sell it. They can do…”

No, no, no, no. They’re not claiming ownership. They have a license to use it for this very specific purpose.

Colleen: Some people probably lit a match with that comment.

Matt: Oh, totally. They light a match. They lit a keg of dynamite.

That’s when I first saw this come up. That’s what everybody was talking about. I’m like, all right, and you can go and get the terms of service.

It took me however long it took me to type it into Google to pull up the terms of service.

I’m like, but that’s not what it says. It says it’s for this very explicit purpose. People are like, well, they don’t have to do it with that purpose.

Okay, true, they can ignore the contract. But Adobe ignores the contract at their peril.

If they start taking people’s content and sharing it around selling it, doing those sorts of things, that is an obvious copyright violation.

It’s just so obvious. That kind of a case would take about—I don’t know;It would take a decent lawyer about three hours to put together and probably win in a walk.

Because, A, you have a limited license for this purpose, and using it for anything else violates the terms. It violates copyright, and it violates the terms of the terms and conditions. It’s a simple case. It would take a while to get there, obviously, because litigation grinds slowly, but it’s a simple case.

I think people really got freaked out about that.

So read the whole contract. Understand what that’s in there. Every term means something. Every clause means something. Every independent clause, subordinate clause. If you remember back to your grammar school classes.

Colleen: I do!

Matt: Yeah, you can’t ignore that. I think people really sort of messed up on that. I think they got hung up on something that, quite frankly—that Section 4.2, which is what initially I saw—I’m like, that exists on Facebook. It exists on LinkedIn’s terms of service. It exists on X’s terms of service. It exists everywhere.

It’s the same sort of phrasing, and it’s been around for probably as long as social media has been around. It’s just people just didn’t think about it.

They just saw this thing. And a powder keg exploded.

Colleen: Do you think that people overlooked that wording on the terms with Facebook or LinkedIn and other platforms? Or do you think the fact that this was like, in Adobe’s terms of service, and they’re already outraged with Adobe over a lot of issues, that it was like, well, this is…?

Matt: I think it’s a combination of both. I understand within the design community that Adobe is not…They’ve become the big bad. Just watching sort of what’s happening in terms of mergers and acquisitions out in the public, Adobe buys up a lot of small creative software services and things like this.

They do that, and, okay, you’re upset about that? Fine, I hear you. But you then have ignored the same terms and other terms of services, or you didn’t read them. Let’s be honest. Then somehow something viral caught on. I don’t know where it was. I don’t know specifically what it was, because neither you nor I have the time to do the detective work for it.

But it just sort of spun out without anybody really anybody truly realizing what everything meant. It was like, “I don’t like Adobe. There’s this term that somebody’s saying that they can use my data in my designs, and I’ve given them the power to use my stuff whenever however they want.”

You just take this sort of, “I don’t like Adobe. I don’t like the fact that I can’t really do anything about it. And now this.” Then it’s just like an explosion of people just getting super ticked off.

Colleen: You said the whole contract matters. But a lot of contracts…My contracts that you helped me with… They have— I think it’s the severability clause—here it says if there’s any clause in here that’s deemed to be illegal or whatever, then the rest of the contract is still valid. Is that right? Am I explaining that right?

Matt: Yeah, that’s usually what a severability clause says. Yeah.

Colleen: Okay, so you’re saying the whole contract matters, so you can’t really cherry pick. But how does severability affect that?

Matt: So what severability is…Let’s assume for a moment that there’s a clause in there that says they have a limited license to do what everybody feared that they could do.

But that violates the law. If they were taking actions that violated copyright law or something like that, then a court, in theory, could strike out that one provision, but the rest of the contract still works.

I’ll be honest with you. It would have to…I don’t think a court would take a look at this and just pull that one part out. It’s an important part of the entire, sort of, how they operate in order to improve their services. I don’t think a court could pull that one out and still be able to save the rest of the contract.

I think a court would go, I can’t sever that out, so I’m invalidating the whole contract.

But you also get into things…

Adobe is an international corporation. They operate literally all over the world. Something that’s legal here in the U.S. might not be particularly might not be legal in Europe, with their GDPR (the General Data Protection Regulation) and a few other things. They might not be able to operate like that in Europe.

The severability clause exists in there in order to protect for small things. But this is the terms of service for the entire software. I think a court would have a hard time saying, “ell, this limited license thing, yeah, that’s bad. We’re gonna take that out.”

Okay. But it kind of invalidates whole sections of the rest of the contract. I don’t think they would be able to independently strike that out.

Could somebody creative come up with it? Sure.

But courts are not generally in their job inclined to edit a contract. That’s not their job. Their job is to interpret it.

So the severability clause came up, because in some states, we judges do have that right to what’s called “blueline” or “blue pencil” a contract.

But I don’t think most courts would be not very inclined to do it. Because it’s not their job. They will rapidly admit that it’s not my… They may know contracts, and they could probably talk for hours about contracts, but they don’t know software. So they’re not going to try to interject there.

Can Adobe Use My Files in Creative Cloud?

Colleen: But so do these terms only…? Because there seem to be a lot of questions about this from designers… Do these terms only pertain to if you’re using if you’re putting files into the Creative Cloud or what about the files on your computer?

I’ve seen a lot of designers saying, well, what if you work under an NDA? What does that mean?

Matt: I think people are looking for a conspiracy. Oh, my gosh, if I open up a file, using Photoshop or some other thing, and I’m using the software, then I save it on my my local drive, that Adobe can somehow reach in and get that.

Could they?

Colleen: Yeah.

Matt: Sure. The technology… Hacking happens. We all know that.

If they did that, that would be a violation of several federal cyber laws and things like that, to reach into your hard drive to do it.

Now, if you have material that is subject to an NDA and you’re saving it on the cloud, you’re running a massive risk. That’s just a security risk in and of itself.

I work with patent attorneys and things like that. If they have images and things like that that they have to create or manipulate or deal with, none of them would ever save it on a cloud-based server. If that becomes public, the patent is ruined.

You’ve invalidated the patent. That’s a massive expense.

If you’ve got stuff that’s subject to an NDA, don’t store it on the cloud and have reasonable protections on your laptop or the servers in your firm or what have you. Have reasonable security.

Adobe is not going to reach in to somebody’s hard drive or into your server and get it.

Would it happen? Yes. Would it happen? Not through Adobe. I don’t think that they would do it.

I think there’s a bunch of lawyers that are sitting around going, “Don’t do that. Don’t do that. No, don’t do that. No, you can’t access somebody’s hard drive.” I mean, probably a bunch of lawyers pulling out their hair.

I’m sure the Adobe legal team was like, “You people don’t get it.” But what do I know?

Can Adobe Use My Content to Train AI?

Colleen: This is also…You’ve talked with me on the podcast before about having plain English contracts. The contracts are always written for other lawyers to look at instead of for the end user. Some of this could have been maybe clarified a bit better, in plain English.

Matt: I think Adobe has owned up to that. It’s like, we didn’t really write this very well. Well, true. You didn’t.

I think they could have done a better job writing it. I think they should have done a much better job rolling it out.

But I don’t think… It’s not super, super legalese. But it’s also not written in a way that the average non-legal business person is going to be able to go, “Okay, I know exactly what that means.”

It would have been very simple to say, “We don’t use this data to train our AIs. We don’t use this data to do…It never leaves our in house, and we’re never going to license it out to somebody else.”

It would have been very simple to say that, and they chose not to say that.

If I were advising Adobe, I’d be like, “You need to make sure that the 22-year-old junior designer at a firm understands what this means.”

It’s hard. It’s hard to write like that, particularly when you’ve got decades of experience writing legal, legal contracts and things like that. It’s very hard to change your mindset about language.

So I get it. There’s certainly a lot more collaboration going on between Adobe’s legal team and their communications team this week and last week.

I think that whenever you’re working with contracts, you’ve got to remember the person on the other side of your business. They don’t know your business. They don’t know your lingo. They don’t know your shorthand.

You are the one who has to explain it.

For Adobe, they were the ones who needed to explain it. I just don’t think they did a very good job. I think that a lot off end users were like, “It’s another thing that Adobe screwed up.”

Colleen: Right.

Matt: It’s easy to get insulated in your thinking now.

Colleen: Right. Yeah, I mean, I wonder how much this is really, if this is going to be like, the beginning of their demise or something? I don’t know.

Alternatives to Adobe

Colleen: I mean, there are so many more alternatives now to Adobe software than there used to be, like Affinity. Now we’ve got Venngage. I mean, it’s not for long documents, but like an alternative to Canva. But it has accessibility in it.

The big thing is if you’re doing accessibility work with documents, like I do, you’ve got only so many options. You’ve got InDesign and then you’ve got Quark XPress. I haven’t checked out Quark XPress.

But Affinity Publisher just implemented some accessibility features. But otherwise, it’s easier to switch. Some of the features are very comparable between the other kinds of software.

Matt: Sure, but you also have to spend a little bit of time comparing terms of service. From a legal perspective, it may be okay, it’s not Adobe.

Alright, that may be a point in whoever’s favor it is right away. But I would be shocked if the terms of service that Affinity uses or something else that it’s using are all that radically different than what Adobe is.

The dirty little secret in the legal world is that we reuse things over and over and over again. The contract language that I write for you or for anybody else is not copyrightable. I can’t copyright that. So it’s not mine.

Somebody else may come along… You may have a client who’s like, “Oh, I really, really liked the way Colleen’s contracts were drafted,” which is a big point in my favor. Yea!

But they can crib that, and I have no claim to that.

Affinity, when they were building things out, their lawyers are like, well, we got to have an end user license agreement, we’ve got to have terms and conditions and all this other stuff. What did they do? They went and looked at the big boys.

Okay, we see this. This works. This works. This works. Let’s change this because it doesn’t quite fit what we’re doing. But I would be surprised—And I haven’t done it—but I’d be surprised if Affinity’s terms of service are radically different than Adobe’s.

Colleen: Right, I saw a lot of designers saying that: “Oh, I wonder if Affinity’s terms of service are like this or not.” So it sounds like a lot of people haven’t checked into that.

Matt: Probably not.

Colleen: Maybe they weren’t paying as much attention to that as they were to the Adobe terms of service. I don’t know.

Matt: Again, it could be Adobe’s held in such poor regard with so many people that anything different, they’ll take.

Colleen: Right.

Matt: Without really thinking through. I can see if like, okay, if somebody likes Affinity because they like the user interface. They like how easy it is to use or what have you.

Colleen: And that’s not a subscription.

Matt: And that it’s not a subscription. But I would be floored if Affinity’s not thinking about a subscription service.

It is how most software is delivered today. You store stuff on their cloud. It’s their cloud. It’s their data to a certain extent. It’s yours. You own it, but if you put it somewhere where they can access it, they’re going to access it.

Affinity is a downloadable software. You keep it somewhere. Great. But you also then have to maintain it. And how do you maintain it?

Every once in a while, my computer slows down. Then when I shut down at the end of the day, it’s like, you need a software update. Okay. It does the software updates. If there’s an updated terms of service, they should tell me. I would.

Colleen: Right.

Matt: So I think that there was an enormous rush to judgment on Adobe for things that people weren’t quite prepared for. I think that if you are going to strike out at Adobe for being a bad actor, make sure they’re actually being a bad actor.

If you don’t like them as a corporation, if you don’t like their products, if you don’t like their sort of domineering position within the market, okay, these are all valid reasons to hate on Adobe.

But if you’re going to slice and dice their terms of service, make sure you’re not throwing the baby out with the bathwater. Chances are your preferred alternative probably too has pretty similar terms of service.

Colleen: Right.

Matt: I think one of the things that people really got upset about was they were worried that their data was being used to train Firefly.

Colleen: Yeah, I would have a fit about that.

Matt: Yeah.

Colleen: I mean I don’t use the AI stuff. I really don’t. I’m just not interested.

Matt: Yeah, I use AI tools. I’m getting better at using them. There are certainly some valuable things for it to do.

One of the software that I use helps me do legal research, and legal research takes an enormous amount of time.

Colleen: I can’t even imagine. Yeah.

Matt: Yeah, I’m very careful. It’s like okay, the AI pulls various sorts of things based upon the information that I give it. I go and check those cases. But I didn’t have to do all of the work to literally find and identify those cases. Sometimes those cases lead me down a different rabbit hole, which is fine. That’s part of the legal research.

But the data that AI is being trained on is publicly available data. So it’s different in my world. I can see where people are very up in arms about how their concern that Adobe was using their data to train the AIs.

Okay, that’s a legitimate complaint. But that’s not what was included in the update.

The update says “we can use it so we can improve our software and services.” It didn’t say anything about using it to train the Firefly AI. That’s where Adobe screwed up. All they had to do was put it in there, “to improve our software and services, such as this product that you’re using right now.” Whether that’s Photoshop or what have you.

They could have just as easily put in there, “We don’t use your data to train the AI.” How hard would that have been? It’s not.

I think that’s the lesson that Adobe learned.

But by the same token, I think a lot of people need to step back and say this isn’t new language. They’ve been able to do this for quite some time.

Colleen: So they’re supposed to come out with an update on June 18. So do you have any ideas of what you think they might update?

Matt: I think that they’re going to add some clarifications into the language that says, okay, yes, you have to grant us a limited license. But this is exactly what we’re going to be using the limited license for.

So I think they’ll clear up what that limited license is going to be. I think they’re going to explain a little bit more what “automated review” means.

Social media platforms like Facebook, or Twitter or LinkedIn, and things like that have content review, policies and stuff like that. They’ll pull down things. There’s the Digital Millennium Copyright Act and stuff that happens.

That’s typically run by humans, but for protecting against abusive materials and things like that, it’s automated. It’s programmed. It’s machine learning, which is just a different type of AI.

Maybe they will have a situation where, okay, we’re going to flag this a little bit differently, or a little bit better. But I think Adobe is going to be a little bit more transparent about what they’re doing with the data—at least that’s what I would be advising them.

I advise clients all the time. Sometimes a little bit of “why” in your contract goes a long way.

Colleen: That’s a great point.

Matt: This is why I need this information and this is what I’m going to be using it for.

I think maybe Adobe is going to learn that lesson this time. We’ll see. It’s supposed to come up tomorrow. Who knows? Maybe we’ll be back talking about their screw-ups.

Colleen: Right. Well, I was just thinking that we might be updating the episode right before we put it out.

Matt: I think that I think that the other thing that Adobe could be doing a little bit better is, in addition to explaining the why, is maybe explain a little bit more about the security that goes into things that are stored on their cloud.

Like I said, I would never put any client data on the cloud.

Colleen: I don’t. I never use it.

Matt: Yeah, I think that’s just too big a risk, particularly if you’re subject to an NDA.

Colleen: And a lot of government work. Yeah.

Matt: Yeah. But I think that they may need to explain that a little bit better. I think they may have learned that lesson albeit.

I don’t think it’s a lesson they necessarily… I think they stepped in it a little bit. I think they could have done better. But at the end of the day, it’s not wrong. You know, it’s business and they’re trying to improve their products and services. They’re in a highly competitive environment. They’re already in bad regard with so much of the community.

I think they may have been like a lot of large corporations that kind of took their customers for granted a little bit.

Colleen: Just a little.

Matt: Just a little. So it takes a while to get through all of that, and mistakes are made.

But, hopefully, when it comes to rolling out the new license agreements, or the corrections or whatever they’re going to do, there’s going to be a lot more transparency.

Colleen: Hopefully. So we’ll see.

Matt: Yeah, we will see.

Colleen: All right. Well, thanks so much for coming back yet again on the podcast to talk about this.

Matt: Am I the leader of all of your repeat offenders? Like I’ve been here more than anybody else?

Colleen: Oh, yes. yes. By far. Yes. Okay. You’re the leader of the repeat offenders.

Matt: I feel so much better. I may get a call later this week saying, “Hey, let’s update this. “

Colleen: Right. I dub you the leader of the repeat offenders.

Matt: Okay.

Colleen: All right. Be sure to like, share and subscribe if this was helpful to you.